With Friends Like These…

April 21st, 2016

Shortly after Texas challenged the legality of DAPA, three “Jane Does”–aliens who stood to benefit from the policy–moved to intervene in the proceedings. The District Court denied their motion to intervene, but the 5th Circuit (to my surprise) reversed. After certiorari was granted, the intervenors filed top-side briefs. The Court granted Texas’s motion to expand argument time, and the House of Representatives got 15 minutes. For reasons I do not fully understand, the United States gave 10 minutes to the Jane Doe intervenors.

As far as I can tell, the intervenors added nothing that helped the government’s case, and indeed in several spots, actually harmed the government’s case.

With respect to standing, the government argued that Texas could change its law to deny driver’s licenses to DAPA beneficiaries. Chief Justice Roberts asked Solicitor General Verrilli if the government would sue Texas if it enacted such a law, based on preemption concerns. Verrilli hemmed and hawed, and refused to commit.

CHIEF JUSTICE ROBERTS: Well, but if ­­ if they change that policy to avoid the injury that they allege, in other words, if they did not confer ­­ offer driver’s licenses to those who are lawfully present  because of your policy, avoided that injury, you would sue them, wouldn’t you?

GENERAL VERRILLI: I’m not sure at all that we would sue them. It would depend on what they did.

Roberts explained that this puts Texas in a “real catch 22” because 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.” But then you’ll get sued!

Alito asked the question again, clearly.

JUSTICE ALITO: And if you’re going to make the argument that they lack standing because they have a viable legal option, I think you have to tell us whether, in the view of the United States, it would be lawful for them to do that. I think the Chief Justice asked you that question before, and you didn’t get a chance to answer it. Maybe you could answer it now.

Verrilli again dodged the question.

Justice Kennedy also seemed to suggest that such a law would be preempted:

JUSTICE KENNEDY: But suppose ­­ suppose the State of Texas said this policy that the government has announced is invalid; it violates separation of powers; therefore, we will not issue licenses to this class of persons? . . . It seems to me that the Federal government could say this is not for you to say.

Verrilli held the line, and wouldn’t give up the key concession–which was the correct advocacy tact.

But when the lawyer for the intervenors approached the lectern, he did not hold the line.

CHIEF JUSTICE ROBERTS: Do you think it would be illegal if Texas adopted a policy saying everyone lawfully present in Texas except people subject to DAPA get a driver’s license?

MR. SAENZ: I think it would be, in candor, subject to a challenge that would revolve around the circumstances and the reasoning behind that new legislation.

I appreciate Mr. Saenz’s candor, but this answer did not help the case. But then it got worse.

Later in response to a similar question from Justice Sotomayor, Saenz added that not only would there be preemption issues, but “There would be equal protection claims.” Justice Kagan followed up on this:

JUSTICE KAGAN: Do I take it from the way you are phrasing this that you actually think that the equal protection concerns would be more serious than the preemption concerns?

MR. SAENZ: I think it depends on the circumstances of how Texas is to make its decision.

This, again is not helpful, because it bolsters the Chief Justice’s Catch 22 hypothetical. Not only are their statutory problems, but also constitutional problems! Not helpful. Texas is indeed between a rock and a hard place.

Later, Justice Alito asked Mr. Saenz if his organization would sue an employer who would not hire a DAPA recipient. Saenz, in candor, said yes–and his group has filed such suits before!

JUSTICE ALITO: If an employer took the position that the employer was not going to hire a DAPA beneficiary because the employer believes that they are not ­­ that they are not lawfully authorized to work, would prefer someone else over them, could that person sue on any theory of discrimination, for example, under Section 1981?

MR. SAENZ: They could, Your Honor. And ­ and the outcome of that case, I think, has not been clearly established by precedent so far.

JUSTICE ALITO: If that’s true then, DAPA gives them a legal right. It’s more than just putting them in a low­priority prosecution status.

JUSTICE ALITO: What is ­­ but what is your position on that?

MR. SAENZ: Our position would be that it is something to be litigated. In fact, to be ­­ in all  candor, we have litigated it to a settlement.

Again, I appreciate Mr. Saenz’s  candor, but this doesn’t move the ball forward. This is directly in contrast with a statement Solicitor General Verrilli made during his rebuttal.

Additionally, Justice Breyer asked Mr. Saenz if there was a political valence to this case.

JUSTICE BREYER: Is there any other reason that’s in this record, such as ­­ we could imagine other reasons. Is there any serious effort to rest their claim? We don’t want to give them licenses on anything other than money?

MR. SAENZ: Yes, Your Honor.


MR. SAENZ: Governor Abbot has indicated that, in the record ­­

JUSTICE BREYER: In the record here.

MR. SAENZ: Yes, it’s in the record here, I believe, Your Honor, that, in fact, this is a political dispute. They do not agree with the policy adopted by the Administration, though they have conceded in this case that it is within the Executive’s discretionary authority.

JUSTICE BREYER: You’re talking about in general. I’m focusing on the narrow question of how Texas is hurt, specifically, not a political  disagreement. How are they specifically hurt by giving these people driver’s licenses?

This was not the answer Justice Breyer was looking for, and I think unnecessarily injected a partisan element in the case.

I’m not sure what dividing argument time gave the Solicitor General.

Generally, I don’t get the point of the intervenor’s briefs. If the Jane Does argue that DAPA is some sort of temporary, discretionary relief that can be rescinded at any point, then how is this something they can restructure their lives on to come out of the shadows? Of course they know that the relief will not be rescinded, but that cuts against the ephemeral nature of DAPA relief.