Chief Justice John G. Roberts Jr. was beside himself in dissent when the Supreme Court in 2007 upheld a suit by the state of Massachusetts to force the Environmental Protection Agency (EPA) to regulate greenhouse gases. Roberts and three like-minded conservatives argued unsuccessfully that Massachusetts had no legal standing to bring the politically charged issue into a federal court.
Nine years later, the court now has to decide whether Texas and 25 other Republican-led states have the legal standing needed to sue the Obama administration over its policy to protect some 4 million illegal immigrants from the threat of deportation. The federal appeals court for Texas relied on the Supreme Court’s earlier decision to allow the suit, but Texas’s claimed injuries are flimsy in the extreme in comparison to Massachusetts’ claims in its earlier suit.
To be consistent, Roberts and the other conservatives should vote to toss this suit and clear the way for the Obama policies to go into effect. In agreeing to hear the case, however, the court gave a tantalizing clue that the conservative justices are if anything eager to expand a somewhat technical issue of administrative law into a major showdown over Obama’s use of presidential power.
At issue in the case, United States v. Texas, are two policy guidance memos issued by Homeland Security Jeh Johnson in November 2014 that effectively shield parents of U.S. citizens or permanent residents from the threat of deportation. Obama followed by announcing “executive actions” to allow renewable three-year work authorizations to immigrants granted “deferred action” status.
A federal judge in Brownsville, Texas, and a divided panel of the Fifth U.S. Circuit Court of Appeals both ruled that Johnson’s memoranda were the kind of agency action that required formal rulemaking procedures and, in any event, were “arbitrary and capricious” applications of federal immigration law. The administration put those questions along with Texas’s legal standing in its petition asking the Supreme Court to review the Fifth Circuit decision.
Given the importance of the issue, the justices had no alternative but to hear the government’s appeal. In its order granting review, however, the court directed the attorneys to address the additional question whether the guidance violates the Constitution’s so-called Take Care Clause, which requires the president to “take care that the laws be faithfully executed.”
Constitutional law experts quickly reported that courts have hardly ever interpreted the Take Care Clause – and for good reason. As important as the president’s executive powers may be, questions of enforcement priorities are largely political not legal disputes, hardly susceptible of judicial resolution without injecting the courts into politics.
In his dissenting opinion in the earlier case, Massachusetts v. Environmental Protection Agency (2007), Roberts argued that Massachusetts complaint did not belong in the courts. “This Court’s standing jurisprudence simply recognizes,” he wrote, “that redress of grievances of the sort at issue here ‘is the function of Congress and the Chief Executive,’ not the federal courts.”
The majority in the Massachusetts case found that the state had standing because of the risk that it would lose land as sea levels rose because of global warming. “Massachusetts has a special interest and position here,” Justice Anthony M. Kennedy wrote for himself and four liberal justices. He emphasized as well that the state was invoking a federal law, the Clean Air Act, in seeking to force EPA to adopt a rule regulating greenhouse gases in order to protect its sovereign interests.
Texas has no comparable position in attacking the Obama administration. The “deferred action” policy guidance memos are just that, not formal rules. And the administration notes that it has to adopt enforcement priorities because it has the money for no more than 400,000 deportations per year.
Even if Texas had a good administrative law case, it stretched to try to show legal standing. In its most specific allegation, Texas claims that it will lose “millions of dollars” under the Obama policies because of the state’s decision to provide below-cost driver’s licenses to immigrants not facing deportation. In its filing with the Supreme Court, the state goes on to claim on behalf of all the states “an interest in enforcing their own legal code and in protecting their citizens’ economic well being.”
The administration flatly rejects the argument. “Like a member of the public, a State generally lacks standing to challenge the Executive’s policy choices about how to enforce federal laws, including the immigration laws,” the solicitor general’s office wrote in its appeal. The brief argues as well that the states have no sovereign interest to assert because the deportation power lies with the federal government, not the states.
From the start, Republican lawmakers and conservative commentators have framed the issues in this case in starkest terms. They view the immigration policies as merely one example of Obama’s lawless overreaching of presidential power – along with tweaks to the Affordable Care Act and, more recently, a tighter definition of gun dealers subject to the federal background check requirement.
For these Obama opponents, the court’s decision to add the Take Care Clause to the immigration case is red meat indeed. As chief justice, Roberts has said he wants to steer the court clear of politics. The court’s decisions gutting federal campaign finance law and the federal Voting Rights Act belie Roberts’s stated intentions. And politics will be front and center when the immigration case is argued in April.