The U.S. Supreme Court. (Reuters/Joshua Roberts)
With Congress unable to agree on much of anything, opponents of the president’s agenda have largely turned to the judiciary in hopes of reining in what they claim is “the brazen lawlessness that has become a trademark of the Obama administration.”
The phrase is Texas Attorney General Ken Paxton’s, who clearly has excellent skills in brazen hyperbole. But there are some on the left who wouldn’t demur. Their concerns center on surveillance, detainee rights, asylum-seekers and the drone wars. From the right, where war is fine so long as it isn’t against coal, lawsuits have instead focused on environmental regulation, the Affordable Care Act and, of course, immigration.
[Appeals court rules against Obama on immigration program]
The last of these returned to the headlines this week with the decision of a three-judge panel from the U.S. Court of Appeals for the 5th Circuit in New Orleans. The panel declined 2-1 to lift a lower-court injunction from February blocking implementation of the administration’s plans to defer the deportation of up to 4 million people who are in the country illegally.
The administration argues this falls within the president’s discretionary power: Since there are not enough resources to prosecute everyone in violation of the law, even faithful execution of the law must involve setting priorities. Thus, some people will be at the top of the list for deportation; others, in practice, will never be. The states and governors bringing suit argue instead that in this instance the administrative actions actually changed the substance of the law, not making individual exceptions but rather bestowing new rights on large groups of people, which is something that only Congress can do.
The current ruling does not settle this argument; nor for that matter did the Texas district court opinion issued in February. The questions in Tuesday’s opinion were instead (1) whether the states actually have standing to sue over this policy; (2) whether the court itself had the power to examine the administrative action; and (3) whether there would be any public harm in continuing to suspend the program while the merits received additional attention. The answers were “yes,” “hell yes,” and “no.”
To show standing, the court relied on Texas’s claim that it costs $130.89 to issue a driver’s license. Thus, in having to issue licenses to the newly non-deported, Texas will be harmed, and can sue (though surely Gov. Greg Abbott (R) may want to look into this rather astonishing marginal cost when looking for ways to cut state spending). Indeed, the court claimed that “being pressured to change state law constitutes an injury.” In a fun twist, the court also argued that the logic of Massachusetts v. EPA, a 2007 case despised by those opposed to expanded interpretation of the Clean Air Act, helped Texas show that its harm was “traceable” to federal action.
On the court’s own standing, it should come as no surprise that the judges decided they had the power to decide, either in the case as a whole or with regards to the lower court’s argument that the administration’s plan was inconsistent with the requirements of the Administrative Procedure Act (APA). Courts, like other political actors, disclaim power when they find it useful to do so but rarely otherwise. (The majority even managed to cite Marbury v. Madison, that foundational case.)
This veers into the final point about whether overturning the injunction would cause harm. Based partly on its reasoning about the APA, the court held that “the United States has not made a strong showing that it is likely to succeed on the merits” when those merits are considered. Further, based on its reasoning about the costs to states, it found that more harm would be done in lifting the injunction than in keeping it in place. Finally, the court noted that since immigration policy is supposed to be “uniform,” it is hard to see why the administration’s program should be allowed to go into effect in some states but not in those bringing the suit.
As noted above, so far this case has not been about presidential power but about standing, justiciability, and the Administrative Procedure Act. To be sure, the District Court judge made little secret of his preferred outcome in the case, but past jurisprudence has given presidents particularly impressive discretion when it comes to immigration law. The administration may prevail when another panel of 5th Circuit judges considers the case.
Still, the lessons of the case so far seem to be twofold. First, President Obama should hope for the luck of the draw. So far the best predictor of judges’ feelings on the merits is the party of the president that appointed them.
Second, and not unrelated, American politics is not a prize fight, with clear rules of sportsmanship and an acknowledged winner.
Instead, as the late, great James Q. Wilson once observed, American politics is a bar fight. (When applied to the courts, it is in fact a fight at the bar…). As soon as a policy is issued, the winning side declares victory and seeks to move on. But its opponents do not have to await for a scheduled rematch. They simply move to a new venue in hopes of undermining it. And there are many such venues — with no real bounds on participation, tactics or weaponry. Indeed, new combatants with new energies are pulled in as the fight spills into the surrounding streets (or states).
In some policy areas this may benefit the president, as suggested by his efforts to evade Congress by taking his initiatives to the administrative arena, and even to the state and city levels. But as the fight over immigration progresses, Obama probably doesn’t agree with Alexander Hamilton that the courts are “the least dangerous branch.”
