Roberts Shows No Signs Of Taking Easy-Out On Major Immigration Case

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April 18, 2016 2:04 p.m.

If Supreme Court Chief Justice John Roberts is thinking about dismissing a major immigration lawsuit on a technicality, he wasn’t showing it at Monday’s oral arguments.

The case is U.S. v. Texas, a lawsuit Texas and 25 other states brought challenging President Obama’s 2014 executive action that shielded certain undocumented immigrants from deportation.

An ideological 4-4 split would defer to a lower court’s decision halting the action, so the next best hope defenders of the immigration program had was that Roberts — who in the past has shown skepticism to suits brought by states against the federal government — would vote with the liberal justices to throw the case out on the basis that Texas didn’t meet the legal qualification known as “standing” to sue in the first place.

Roberts, however, showed sympathy to Texas’ claims of harm Monday, suggesting Texas would be facing a “catch-22” if the court agreed with the government’s arguments.

Texas is arguing that it is allowed to sue the feds over the immigration policy because it will cost the state money to issue drivers licenses to the immigrants covered by Obama’s actions.

Roberts’ “catch-22” remark came after U.S. Solicitor General Donald Verrilli, who was defending Obama’s executive actions, refused to rule out that Texas could face a lawsuit if it declined to give the immigrants covered by the actions driver’s licenses.

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“Their argument is, we’re going to give driver’s license to people subject to deferred action. And you’re saying, okay, that’s your injury? You can take that away. And I just think that’s a real catch-22,” Roberts said. “If you’re injured, you have standing. But you’re not injured because you can change your policy and not give driver’s license to these people.”

If the court does come down 4-4, the decision would be devastating for the Obama administration as the executive actions would almost certainly remain blocked until after the President leaves office and perhaps permanently. But a Supreme Court ruling that approved of Texas’ ability to sue the feds could also have broader implications, the government and some of the liberal justices warned, as it could flood the court with other lawsuits that comes down to policy disagreements. Defenders of the executive actions went into oral arguments hoping Roberts might share that concern.

Justice Sonia Sotomayor said that Texas’ logic — which was being argued Monday by state Solicitor General Scott Keller — “really pits the states against every federal agency.”

Verrilli pointed out that Texas has already filed another suit — this one challenging the federal government’s refugee programs — using a similar reasoning.

It’s not surprising that the government, in both its briefs and Monday’s hearing, geared its arguments towards the questions of “standing,” which would have given Roberts an easy-out to defuse a hyper-politicized case and also cobble together a majority on a court lacking its decisive ninth vote after Justice Antonin Scalia’s death.

Roberts has joined opinions in the past that used standing to avoid tougher, more heated questions, and also wrote a sharply worded dissent in 2007’s Massachusetts v. EPA, castigating the majority opinion that said Massachusetts could sue the EPA over not enforcing air pollution regulations.

“Is the injury here any more indirect and speculative than the injury in Massachusetts against EPA?” Roberts asked Verrilli, in what could have been interpreted as an “I told you so” moment for the conservative justice.

Tough questioning does not mean definitively that Roberts is planning to grant Texas standing to sue. He could have also been pushing the U.S. government to make stronger arguments to help him narrow a decision in its favor.

When Thomas Saenz — a lawyer representing undocumented immigrants who have intervened to defend the actions — took the podium to defend the programs after Verrilli, he picked up on the question on whether Texas would be sued if it stopped issuing the immigrants in question driver’s license. That lawsuit would at least examine a “concrete clash” that would meet standing requirements instead of the speculative cost Texas is presenting here, Saenz said.

The liberal justices meanwhile, brought up the procedural issues they had with the lawsuit again and again, leaving relatively little time to discuss other aspects of the case. Whether the immigration actions violated the Constitution — a question the Court signaled it was interested in when it added it to its briefing requests — was not addressed at all during the arguments.

The liberals’ questions doubting Texas’ ability to sue appeared to be an appeal to Roberts’ own previous characterizations of the court as no place to settle policy disputes.

Justice Stephen Breyer pointed to a previous case where the Supreme Court said that a state could not sue the feds on the basis that an action will cost taxpayers money.

“Because if we do, taxpayers all over the country will be suing in all kinds of cases, many of which will involve nothing more than political disagreements of all kinds,” Breyer said. “And before you know it, power will be transferred from the President and the Congress, where power belongs, to a group of unelected judges.”

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