During oral arguments in Hawaii v. Trump, Judge Hawkins asked Neal Katyal about the brief he filed in U.S. v. Texas on behalf of Former Commissioners of the United States Immigration and Naturalization Service. Here is the transcript, via CNN:

HAWKINS: You’ve argued in the past to give deference to the executive in immigration matters, haven’t you?

KATYAL: Sure.

HAWKINS: And the United States against Texas, I think you wrote an amicus brief in which you said, “the particular demands of the immigration system, in fact, require the executive to wield broad discretion. The executive prioritize enforcement resources in a way that makes the immigration system function effectively, while balancing the range of foreign policy, national security, economic and humanitarian concerns.” That’s your language, isn’t it?

KATYAL: Absolutely. And we don’t disagree with any part of that, Judge Hawkins. Rather what we are saying is that the president has to implement, you know, Congress’ will. But it can’t be an unbounded delegation . . . .

In United States v. Texas, the government cited two statutes to identify President Obama’s statutory authority to implement DAPA. First,  U.S.C. § 202(5) provides “The Secretary shall be responsible for . . . Establishing national immigration enforcement policies and priorities.” Second, 8 U.S.C § 1103(a) affords the Secretary the authority to “perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.” In the brief I prepared on behalf of the Cato Institute, I argued that these two statutes cannot be read to provide the expansive authority to justify DAPA.

The Court should hesitate before reading these provisions as granting the government the unbounded authority it claims here. Such a construction would render much of the INA superfluous. Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001). The source of the government’s purported statutory authority could not hide an elephant, let alone the Leviathan that is DAPA. To avoid constitutional doubts, these provisions should be read as they are written—to permit only authority within “the provisions of this chapter.” 8 U.S.C. § 1103(a)(3) (2015); see Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009).

In his brief on behalf of the former Insurance Commissioners, Katyal wrote that these two statutes did provide sufficient authority.

The authority to grant deferred action and work authorization are broad powers, but they are within the scope of the Secretary’s wide grant of statutory authority to create “national immigration enforcement policies and priorities,” and to “issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” to “administ[er] and enforce[]” immigration laws. 6 U.S.C. § 202(5); 8 U.S.C. § 1103(a)(1) and (3). The vast and complex system of immigration law requires the Executive not only to make decisions about how to prioritize enforcement resources, but also how to do so in a way that makes the system function effectively, while balancing a range of foreign policy, national security, economic, and humanitarian concerns.

Let’s contrast these two statutes, with the statute at issue in the travel ban case, 8 U.S.C. 1182(f).

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

Sections 202(5) and 1103(a) are fairly generic delegations without any specific phrases for domestic matters, an area where Article I is paramount. Section 1182(f) is an extremely specific delegation, that affords the President an expansive authority to protect national security, an area where Article II is at its zenith. It is remarkable that attorneys who can see in 202(5) and 1103(a) such an expansive discretion, parse 1182(f) in such a formalistic and minimalistic manner.

Beyond this statutory incongruity, Judge Hawkins’s question raises a collateral issue about to what extent attorneys are estopped based on arguments they made in previous cases. This issue is especially poignant after so many parties switched sides after November 8. As I noted earlier this year, to support its nationwide injunction, the Washington AG expressly relied on arguments it opposed the year before in the Texas litigation. I don’t think the Attorney General, or Katyal for that matter, is bound. Litigators do not have a duty of consistency. Scholars, on the other hand, do.