Blog

One of the more surprising exchanges during oral arguments in U.S. v. Texas came from the usually-demure Chief Justice, who quoted President Obama’s statements that he lacked the authority to take the actions he ultimately took in DAPA.

CHIEF JUSTICE ROBERTS: When he announced ­­when he announced ­­ the President announced DACA, the predecessor provision, he said that if you broadened it this is a quote, “Then, essentially, I would be ignoring the law in a way that I think would be very difficult to defend legally.” What was he talking about?

Solicitor General Verrilli answered that at the time President Obama made those statements, he didn’t know he had the authority, but after checking with OLC, said “I’ve got the power!”

GENERAL VERRILLI: And then ­­ and then second, the other thing is, you know, maybe he thought he couldn’t extend it at that time to DAPA. But, you know, what happened here is that the President and the Secretary went to the Office of Legal Counsel and asked for an opinion about the scope of their authority to ­­ to ­­ the scope of this discretionary authority, and they got one. And they exercised it consistently with that and up to the limits of that and no further. And so, you know, I do think whatever the President may have met ­­ meant, we went through that process, we came to that conclusion, and we ­­ and acted

This account of the relationship between the President and OLC is, well, sanitized. Charlie Savage explains the dynamics in “The Power Wars,” which I excerpted here.

By June 2014, it was clear that Congress would not enact any immigration reform before Obama’s presidency was over. Vowing to do as much as he could to fix the system without Congress, Obama asked for options. His policy-decision process, characteristically, was heavily legalized. In meeting with immigration advocacy groups, Obama would point to Neil Eggleston, his new White House counsel, and tell them, “I’m going to go as far as he says I can.” Eggleston, in turn, conferred with Karl Thompson, the new acting head of the Office of Legal Counsel.

This comports with a November 2014 article in the Times where DHS Secretary Jeh Johnson worked to use “our legal authorities to the fullest extent.” At each juncture, the President told Johnson to keep pushing farther.

In the meantime, Mr. Johnson’s review of the president’s legal authority was supposed to help resolve the issue. But his first attempt in May was a disappointment, White House officials said, because in the president’s view, he did not go far enough. The effort only sought to modify the guidance for immigration agents, and did not provide work permits or directly shield anyone from deportation.

And yet, with Republicans still struggling to move forward, the president’s Democratic allies on Capitol Hill reminded him that even Mr. Johnson’s tepid suggestions would probably derail any hopes for legislation.

Mr. Obama told Mr. Johnson to try again, and then announced that he would delay the results of the review until the end of the summer, hoping to give Mr. Boehner one last chance for action.

Politico offered a similar report:

Obama and Johnson, as well as their staffs, traded draft memos and ideas for months. By one count, they produced more than 60 iterations of the proposals. Johnson’s aides would draft something, then shoot it over to Eggleston and Munoz to examine and return with revisions.

What is true is that the Eggleston did not overrule OLC, which told him that deferred action could not be granted to the parents of DACA beneficiaries. But the picture Verrilli paints is somewhat backwards. Roberts, a former executive branch lawyer, knows exactly how these sorts of things work.

I’ll leave aside for now the charges against the Office of Legal Counsel in recent years, as the President has expressly ignored their advice when it wasn’t what he wanted to hear (See Libya and D.C. Voting Rights).

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.

JUSTICE BREYER: What?

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.

 

 

The lecture notes are here.

Here is the apartment at issue in Hilder v. St. Peter at 10 Church Street, Rutland, VT.

View Larger Map

This is Judge Richard Posner. He adjudicates in beast mode.

This is the other beast of the 7th Circuit, Judge Frank Easterbrook.

The lecture notes are here.

The First Amendment Speech II

• Brown v. EMA (887-900).
• United States v. O’Brien (900-907).
• Texas v. Johnson (907-917).
• Time, Place, and Manner Regulations (917-918).
• Renton v. Playtime Theaters (918-924). Incitement (924).
• Clear and Present Danger (927-931 note 3).
• Brandenburg v. Ohio (935-937).
• Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015)
• Reed v. Town of Gilbert (2015)
• Note on Central Hudson (979-980).

This was the proposed speciality license plate in Walker v. Texas Div., Sons of Confederate Veterans

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.