What will the chief justice do in U.S. v. Texas (the immigration case)?

|The Volokh Conspiracy |

This morning, the Supreme Court will hear United States v. Texas, in which numerous states are challenging the lawfulness of the Obama administration's deferred-action immigration policy reforms. In anticipation of the argument, Adam Liptak of the New York Times has an interesting article exploring how the chief justice might approach the case. As Liptak notes, the chief justice's demonstrated preference for narrow rulings, constitutional avoidance and greater unanimity among the justices suggests he might be open to a resolution of the case that avoids reaching a final judgment on the lawfulness of the Obama administration's actions. Liptak writes:

The case . . . presents fundamental questions about executive power against the backdrop of a wrenching national debate over Mr. Obama's plan to spare millions of immigrants from deportation. But Chief Justice Roberts's record suggests that he may avoid taking a position on such a divisive and partisan issue, focusing instead on the more technical question of whether the states challenging the Obama administration's immigration plan have suffered the sort of direct and concrete injury that gives them standing to sue.

As Liptak notes (and I discussed in this paper after NFIB), the chief justice has often sought narrow rulings in high-stakes cases, particularly where such rulings had the potential to avoid broad decisions on large constitutional questions.

As Liptak sees it, the chief justice's preference for avoiding major issues could encourage him to accept the argument that the states lack standing to challenge the immigration policy reforms. This argument is buttressed by the fact that the chief justice is no fan of broad standing doctrine (a point on which I am quoted in Liptak's piece and discuss at broader length in this paper). This is a plausible scenario, but I see at least two things that may push the chief justice in a different direction.

First, I think the argument that Texas has standing to challenge the immigration reforms is actually quite strong. I joined an amicus brief authored by Duke Law Professor Ernie Young making this point. This brief argues:

[Texas'] standing, by this Court's traditional criteria, is straightforward. The States have largely ceded to national authorities the ability to determine who is lawfully present within their own jurisdictions; as a result, the States' own governmental responsibilities necessarily expand and contract in response to changes in national immigration policy. One particularly concrete instance of this is Texas's law requiring issuance of driver's licenses to all persons that the national government determines to be lawfully present. DAPA's expansion of that category increases Texas's costs, and that is sufficient for injury in fact.

The United States does not, in fact, challenge the Respondent States' standing on traditional grounds. Instead, it has invented novel requirements without support in this Court's cases, such as a broad rule against "self-inflicted injury." And it has suggested that the fact that the plaintiffs here are States should cut against standing because that somehow transforms a legal dispute over statutory authorization 4 and administrative process into a political controversy. Neither of these departures from this Court's cases can withstand scrutiny.

Standing in this case requires no special standing loophole for state governments. It simply requires recognition that Respondents are governments, with responsibilities that are in part a function of whom federal law permits to be lawfully present within their jurisdictions. Amici take no position on whether Respondents should prevail on their claims, much less on what national immigration policy should be. But there is no doubt that they have standing simply to demand access to national debates about immigration policy.

Although the chief justice is a bit of a standing hawk, I think he will also recognize that the argument for standing in this case is substantially stronger than in cases such as Massachusetts v. EPA, in which the Supreme Court has already found standing for states to sue the federal government when objecting to administration policies.

Second, it's not clear that resolving this case on standing grounds would actually satisfy the chief justice's minimalist impulse. The chief justice often seeks narrower grounds of decision where doing so avoids resolving a larger constitutional issue, but concluding that Texas lacks the standing to sue in this case necessarily involves resolving just such an issue. The argument that Texas lacks standing is not a narrow statutory or procedural judgment. Rather, it's a constitutional holding about the scope of Article III.

If the chief justice does not seek to make this case go away on standing, what might he do instead? One possibility would be to decide against the Obama administration on procedural grounds. Specifically, the chief justice could conclude that, whether or not the Obama administration has the legal authority to implement its deferred-action reforms, it did not go through the proper procedural steps to effectuate the policy. This would, in effect, turn the matter over to the next administration and leave open the possibility that the dispute over immigration reform could be resolved by the political process.

Another alternative is that the chief justice could actually side with the Obama administration. As I've noted before, the argument that the administration's immigration reforms are entirely lawful—particularly in light of past actions taken by prior administrations—is stronger than many on the right have acknowledged. Thus it would not surprise me at all if the chief justice concluded that Texas does have standing, and then joined four (or more) of his colleagues in upholding the administration's reforms. That might not be a narrow way of resolving the dispute, but it would be defensible on the merits.