This will be the first in a series of posts exploring various aspects of the government’s sur-reply in Texas v. United States. As I noted in an earlier post, the government’s previous filings were extremely lackluster. The new brief is significantly improved, and makes much stronger arguments. However, in making certain arguments, I think the government may have put forward certain factual predicates that will make their case much, much weaker on appeal. (For full disclosure I filed a brief supporting Texas).

The United States argues that Youngstown is not the correct framework to understand DAPA (p. 2):

Despite mentioning Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), only in passing in their opening brief, Plaintiffs have made clear through their Reply and at oral argument that their purported constitutional claim hinges fully on that case. But Youngstown is inapposite and fails to support Plaintiffs’ claim. In Youngstown, the Executive concededly acted outside statutorily-delegated authority and therefore sought to justify its actions by reference to the Take Care Clause. By contrast, the Secretary of Homeland Security’s actions here were based on authority delegated to him by Congress pursuant to statutes that require him to prioritize the enforcement of immigration laws, consistent with the scarce resources provided by Congress.

The government’s argument begs the question: Texas challenges whether Congress has in fact delegated this authority. The framework we use to determine the conjunction or disjunction of Congress and the President is Youngstown. Or more specifically, Justice Jackson’s framework in Youngstown. Yet, the government seems to fault Texas for citing “singularly” Justice Jackson:

Plaintiffs now focus singularly on Justice Jackson’s concurrence in Youngstown, 343 U.S. 579 (1952), to support their constitutional claim, but that case does not demonstrate an independent cause of action against the Executive under the Take Care Clause.

No offense to Justice Black’s “majority” opinion, but Jackson’s canonical concurring opinion has become the definitive statement of the separation of powers.

Then-Judge Roberts stated this fact clearly at his confirmation hearing during a colloquy with Senator Leahy:

SENATOR LEAHY: But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?
ROBERTS: I think the approach in the case is one that has guided the court in this area since 1954, ’52, whatever it was . . . . Youngstown’s a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR’s attorney general and certainly a proponent of expansive executive powers . . .

As fate would have it, John G. Roberts clerked for Justice Rehnquist the term that the Court decided Dames & Moore v. Regan, 453 U.S. 654 (1981), which (mostly) reaffirmed Youngstown.

Ditto for then-Judge Alito:

SENATOR SPECTER: Judge Alito, I want to turn now to executive power and ask you first if you agree with the quotation from Justice Jackson’s concurrence in the Youngstown Steel seizure case about the evaluation of presidential power that I cited yesterday.
ALITO: I do. I think it provides a very useful framework. And it has been used by the Supreme Court in a number of important subsequent cases: in the Dames and Moore case, for example, involving the release of the hostages from Iran. And it doesn’t answer every question that comes up in this area, but it provides a very useful way of looking at them.

And then-Judge Sotomayor:

The best description of how to approach those questions was done by Justice Jackson in his concurring opinion in the Youngstown’s case. And that opinion laid out a framework that generally is applied to all questions of executive action, which is that you have to look at the powers of each branch together.

Same for then-General Kagan:

And we have actually never argued that Article 2 alone would provide such authority, and the question you raise really — the usual framework that people use when they think about this question is something called Youngstown, the — of course, Justice Jackson’s opinion in Youngstown. And he sets forth three different zones

So yeah, Jackson is the rule of law.

The government also tries to distinguish Youngstown by explaining it was not a “Take Care” clause case.

To be clear, Youngstown did not involve a claim brought under the Take Care Clause against the President. Rather, the steel companies brought an action against the Secretary of Commerce claiming that the President’s Executive Order, which directed the Secretary of Commerce to seize privately owned steel mills, was not authorized by an act of Congress or by the Constitution. 343 U.S. at 583. The Government acknowledged that it failed to meet conditions necessary to invoke two statutes that would have authorized the Executive to take personal and real property under certain circumstances. Id. at 585-86. Instead, the Government invoked, as a defense, the President’s inherent authority under Article II, including the Take Care Clause, to act without statutory authority. Id. at 587. Thus, Youngstown’s use of the Take Care Clause obtains only in the rare circumstance where the President takes action concededly outside the authority conferred by statute and then relies solely on powers inherent in Article II as a defense to a claim that his order was ultra vires.

This isn’t accurate. While Youngstown was not a “Take Care” clause case, at its core, the Court, and Jackson, found that the President engaged in lawmaking. Why did the President engage in lawmaking? Because neither Congress nor the Constitution gave him the authority to seize the mills. He was no longer executing the law, but making the law. While Truman did not seek to rely on any statutory authority–basing his entire argument on inherent powers–Jackson’s entire framework looked to whether such congressional authority may exist. Here, Jackson provides the rule of decision to determine whether the President is acting according to law, or contrary to it.The same principle, Texas (and I) argue applies to DAPA. Jackson wasn’t simply deciding the case before him–he understood that his opinion would be cited in circumstances he could not anticipate (such as this one). I’m reminded of the final paragraph of Justice Scalia’s concurring/dissenting opinion in Noel Canning:

It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions. Most of the time, the interpretation of those provisions is left to the political branches — which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court’s embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.

The government’s position begs the question–they assume the President was acting according to statutory authority.

That is categorically different from the situation here, where the Secretary of Homeland Security has acted pursuant to a congressional mandate to prioritize enforcement resources and within the Executive Branch’s longstanding enforcement discretion under the immigration laws, Homeland Security Act, and other congressional enactments.

But that is the entire nature of the dispute. And Jackson’s tiers provides a path to resolve that query.

The government makes another unsuccessful effort to distinguish Youngstown–DAPA is not an executive order!.

Additionally, Plaintiffs here are not suing the President, nor are they challenging any action taken by him. Unlike Youngstown, there has been no Executive Order issued by the President; the only issue before the Court is whether the Secretary’s 2014 Deferred Action Guidance is lawful within the framework of the INA and other immigration laws.

As the USA Today noted, while President Obama may not have issued as many executive orders as his predecessors, he has issued a lot of executive memorandums. It doesn’t matter what you call it. What is being challenged is the President’s failure to faithfully execute the laws and to engage in actions contrary to the law.  During oral arguments in Brownsville, a Deputy Assistant Attorney General made this point. The judge was not persuaded. The DAAG quickly retreated, and said something like “well, maybe this is a distinction without a difference.”

After spending a few pages explaining why Youngstown is inapplicable, the government explains why DAPA is consistent with Justice Jackson’s concurring opinion (p. 18):

P. 18

In all events, Plaintiffs’ Take Care Clause claim – even were it cognizable – necessarily fails because Plaintiffs cannot demonstrate that the Executive acted contrary to the express command of the statutes Congress has enacted. As explained below, the Secretary’s actions are not foreclosed by statute, and, indeed, are consistent with recognized enforcement discretion under the immigration laws.

The OLC Memorandum’s discussion of Youngstown is consistent with the above points, as it cited the Jackson concurrence for the obvious point that, as a statutory matter, enforcement decisions have to be consonant with, rather than contrary to, congressional policies underlying the statute that the agency is charged with administering. OLC Op. at 6 (Defs.’ Ex. 2). The Secretary has not exceeded those limits here. Id. at 31.

Well, yes, that’s the question. Is DAPA “consonant with, rather than contrary to, congressional policies.” In Part I of my two-part series, I argue the answer to that question is no, contrary to the OLC memo’s superficial analysis.

By the way, the government didn’t even faithfully cite the take care clause:

The Take Care Clause vests discretionary authority directly in the President, not the Legislative or Judicial Branch, to take care that the laws are properly executed.

The word is “faithfully,” not “properly.” This is almost as bad as the Supreme Court’s replacement of the phrase “public use” in the 5th Amendment with “public purpose.”