Segment on PBS News Hour Discussing Cert Grant in U.S. v. Texas

January 19th, 2016

Tonight I was on the PBS News Hour with Judy Woodruff to discuss the Court’s decision to grant certiorari in U.S. v. Texas. Joining me on the segment was Marcia Coyle of the National Law Journal, and Marielena Hincapie of the National Immigration Law Center.

There were four main points that I wanted to get across.

First, the Court’s decision to review the Take Care Clause question was significant. Based on my research, this was the first time ever that the Justices requested briefing on the Take Care clause. I checked the briefs in Youngstown (thanks to Anthony Gruzdis of the Cato Institute for an emergency trip to the Library of Congress today), and it was only mentioned in passing by all the parties. Similarly, as David Bernstein noted, there was almost no briefing in Train v. United States, the impoundment case involving President Nixon.

Second, Hincapie’s argument that every President since Eisenhower has engaged in deferred action (a talking point that has steadily been disregarded since last November) does not support the President’s actions. Past instances of deferred action were either undertaken based on the President’s powers over foreign policy, or used as a bridge from one status to another. DAPA serves neither of these end. Please read Part I of my two-part series on DAPA for the primer.  (I knew writing these a year ago would come in handy!).

Third, Hincapie repeated the line that both DAPA and DACA embodied a case-by-case determination. My response is here:

The grant rate for the 2012 program was over 97 percent.The government has not been able to find a single instance where a person was denied for discretionary reasons, not one [case]. They could not find a single instance where a person was denied [under] DACA, the 2012 program, for discretionary reasons. If the government wants to hedge its case on how discretionary DACA was, I think they’re going to lose.

Fourth, in a sense the outcome of this case is largely irrelevant, in light of the upcoming election. If the Court rules in favor of Texas, candidate Hillary Clinton can run on immigration, and try to tip the balance in both Houses of Congress to support reform. Then, she can achieve what Obama could not. If the Court rules against Texas, it is impossible for him to implement the law in its entirety in the waning days of his presidency.  (Hincapie noted that he could start the expanded DACA right away–this much is true, but the ramp-up time for DAPA takes some time). So it will fall to President Clinton or the Republican nominee to decide what to do. Again, the outcome of the election will determine the fate of the people who could benefit DAPA. And at bottom, this was President Obama’s strategy all along. DAPA was viewed as a temporary reprieve for millions of aliens until legislation could be accomplished, with the hope that a future Congress could not deny relief to the aliens already living and working in the United States. What he didn’t anticipate was that a court order would put the policy on hold till the next election.