More than immigration policy is at stake in the immigration case

|The Volokh Conspiracy |

Tuesday morning the Supreme Court granted certiorari in United States v. Texas, a challenge to the Obama administration's controversial immigration policy reforms. Oral argument will be heard this spring, and a decision is expected by the end of June, just in time to ensure that immigration remains a central issue in the 2016 campaign.

The case focuses on the Obama administration's immigration reforms, but the legal implications of the case will extent far beyond immigration policy. This can be seen just from looking at the four questions the court has agreed to consider.

  1. Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.
  2. Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
  3. Whether the Guidance was subject to the APA's notice-and-comment procedures.
  4. Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.

Note that the first three questions presented were those put forward by the solicitor general in the federal government's cert petition. The fourth question was added by the court.

A threshold issue in this case is whether Texas and the other states suing over the administration's policies have standing to invoke the jurisdiction of the federal courts. This is a particularly important question because state attorneys general have become quite active in challenging federal policies in federal court. Democratic AGs made a practice of suing the Bush administration over various policies with which they disagreed (environmental policies in particular), and now Republican AGs are routinely suing the Obama administration, but courts have not always known what to make of these suits.

In 2007, in Massachusetts v. EPA, the Supreme Court held that states should receive "special solicitude" in the Article III standing analysis, but failed to elaborate on the point. Since then, lower courts have struggled to figure out how to incorporate this holding into the traditional standing analysis. In this case, a divided panel of the U.S. Court of Appeals for the 5th Circuit held that Texas had standing, relying in part on the Massachusetts decision. Because standing is a threshold question—that is, standing is required before a federal court may consider the merits—the Supreme Court will have to address this concern.

The second question presented is a fairly standard administrative law question. The third, however, could bring greater clarity to the question of when a federal agency is required to go through the notice-and-comment procedures called for under the Administrative Procedure Act. The administration, for its part, claims that the new immigration policies did not involve the sort of substantive regulatory change that requires observance of the APA's specific procedural requirements. Rather, the administration simply decided to exercise its policy and enforcement discretion in a particular fashion, and explained this change to the public in an agency guidance. Texas, on the other hand, claims that the guidance is, in fact, a substantive change of the sort that must comply with the APA.

How one characterizes the administration's actions matters for administrative law purposes because it affects both (a) what procedures the administration was required to go through to make the policy change, and (b) whether the administration's action is the sort of final agency action that is reviewable in court. Resolving these questions in the context of Texas's lawsuit could have significant repercussions because federal agencies often seek to avoid having to comply with the APA's procedural requirements, as well as to evade judicial review, by characterizing their actions as mere guidances and unreviewable exercises of executive discretion. And while the U.S. Court of Appeals for the District of Columbia Circuit sees quite a few cases raising these sorts of questions, it's not all that often they reach the Supreme Court. Of course, to resolve these questions, the court will have to first conclude that Texas and the challenging states have standing to bring their claim.

Finally, the court has indicated that it wants to consider the legal merits of the underlying question (assuming, again, that a plaintiff state has standing). In adding the fourth question presented, the court has made clear that (if possible) it would like to resolve all the relevant issues in one fell swoop. That is, if the administration's immigration reforms can be challenged in court, the Supreme Court will resolve as much of the legal dispute as it can as quickly as it can so that the underlying issue can return to the political process, where it belongs.

What will the court do? That's anyone's guess. I am inclined to think that the court will conclude that the states have standing—but that the administration will ultimately win on the merits—but we'll have to see.

For more background on the case, see Lyle Denniston's SCOTUSblog write-up, Robert Barnes and Juliet Eilperin's write-up for The Post, and this commentary by my co-blogger Ilya Somin.

For my prior posts on this litigation, see (in reverse chronological order):