National Review has published my reflection on oral arguments in U.S. v. Texas, where the government urged the Court to rewrite DAPA with a “red pencil.” The Court should not apply a saving construction to a unilateral policy the President can modify himself. Unlike Obamacare, Congress did not enact this. Here is the introduction:
With the Supreme Court poised to rule against President Obama’s executive actions on immigration, his lawyers have once again asked the justices to save the policy by rewriting it. In 2012 and 2015, the Court rewrote key provisions of Obamacare — “penalty” means tax, and “state” means federal — to avoid unraveling a democratically enacted law that was of great social import. Having worked twice before to get the Court to rewrite legislation, the government is now trying a third time: It has asked the justices to alter Obama’s immigration policy by using a “red pencil” to salvage it. The Court should not take the bait. While the judicial branch owes some duty to Congress to find ways to uphold statutes, the Justices have absolutely no obligation to rewrite the President’s unilateral executive actions to save them. If the policy is flawed, nothing prevents the executive branch from bringing it into compliance with the law. It is not the job of the courts to bail the President out of a jam of his own making.
Critically, twistifications and saving constructions–to the extent that they are ever appropriate–are warranted for democratically-enacted statutes, not unilateral executive actions.
Further, the rationales underlying the Court’s twistifications to save Obamacare in 2012 and 2015 are simply not present here. The Affordable Care Act was a statute enacted by Congress, the democratically elected branch that the Constitution vests with the power to write laws. The Court’s duty to avoid invalidating acts of Congress is premised on the legislature’s role in our separation-of-powers system, and on its democratic accountability to the voters. None of these factors compel the Supreme Court to rewrite DAPA.
If the policy is so troubling, then Secretary Johnson can change the memo himself:
Finally, if the DAPA memorandum is so problematic, and it should not have awarded “lawful presence,” absolutely nothing is stopping the president from issuing a new policy. During oral arguments, Justice Kagan stated, “It’s [the government’s] memorandum.” That’s exactly right. The government gets to interpret it or rewrite it whenever they wish. The Department of Homeland Security could have issued a new policy — minus “lawful presence” — in February 2015 after a federal court put DAPA on hold. Or they can do so now. Absolutely nothing prevents them from doing so. Secretary Johnson — who was sitting in the first row of the Court’s gallery — could have signed a new memorandum on the spot, deleting the “lawfully present” language. The executive branch does not need the Court to do its dirty work. Or maybe the government is telegraphing what it will do if it loses this case — simply reissue the exact same memorandum, absent the phrase “lawfully present” — so it can implement the policy before the election. If this is indeed the plan, the Supreme Court should make clear that this further evasion of the separation of powers won’t work.
I don’t know if the Court has ever been asked to rewrite an executive-branch memorandum that the executive branch could rewrite itself.