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The Supreme Court asked four questions about Obama’s immigration initiative. The last one is key.

- January 21, 2016

The Supreme Court has agreed to hear a case assessing the legality of the immigration initiatives announced by President Obama in November 2014.

As you’ll recall, Obama proposed to make it easier for as many as 5.5 million people now living in the United States illegally to stay and to work. (There are about 11 million such people in all; these figures are from the 5th Circuit Court decision from November 2015.) Saying that he wanted to deport “felons, not families,” the president announced that he would expand his program of Deferred Action for Childhood Arrivals (DACA) and create another, larger one: Deferred Action for Parents of Americans (DAPA).

These directives were not executive orders. Rather, the Secretary of Homeland Security issued guidance to law enforcement officials, reshaping their “removal priorities.” The upshot was that in certain circumstances, the deportation of (1) young people brought to the U.S.as children and (2) parents of U.S. citizens would be deferred, and that in the meantime they would be able to work legally in the U.S.

Did immigration law give Obama the power to do this? Texas and two dozen other states, supported by many of the president’s opponents in Congress, argued that he had overreached: The immigration guidance, they claimed, was a new episode in what former speaker John Boehner called Obama’s broader “legacy of lawlessness.” During 2015, a federal district court judge, then a three-judge panel of the 5th Circuit Court of Appeals, ruled in favor of Texas and its allies. Thus the program has not moved forward.

In appealing to the Supreme Court, bypassing review by the full 5th Circuit, the president is rolling the dice, hoping that the justices affirm his authority before he leaves office. His opponents, of course, hope snake eyes come up.

So what’s at stake? In accepting United States v. Texas, the justices asked the parties to answer four questions. Each has important implications. And the deeper you go in the list of questions, the broader those implications are — so if you’re in a hurry, skip straight to the fourth one.

First, do the states have “standing”? That is, do Texas et al. have the right to sue in the first place? One way to think about this is whether the states would be harmed if the feds let more people stay, and whether, even if so, the courts are the right place to work that out.

The lower courts answered yes to both questions. But if the Supreme Court decides the answer is no, the administration wins before getting to the substance of the case. So far, the winning argument has been that since the states issue drivers’ licenses and provide other services to lawful residents, more residents would harm their budgets. This relies on the Supreme Court’s ruling in Massachusetts v. EPA, which said the states are “not normal litigants” – they have a lower burden of proof to get into court than an individual might – and could sue the federal government when it caused harm. Relying on that precedent is a bit ironic: Conservatives normally hate Massachusetts v. EPA, since the states there were demanding more national regulation, not less.

The administration, for its part, says that the guidelines issued by DHS don’t give any particular alien any particular rights, but only advice to immigration officials about how to use their existing discretion. Thus, there’s nothing to sue about here in the first place. And even if there is, states don’t have to subsidize licenses and the like. They can change their law: Why give them credit for injuries they caused themselves, just so they can sue? Anyway, immigration is a power reserved exclusively to the federal government by the Constitution. To allow states into court over incidental costs in such a case, this argument goes, would undermine Article VI, which states that the Constitution and federal law trump state law and even state constitutions.

Second, was the DHS guidance legally issued? The Administrative Procedure Act (APA) of 1946 aimed to increase transparency and public input. (See Cornelius Kerwin and Scott Furlong’s useful guide to this topic.) Among other things, APA requires a “notice and comment” process: The government must publish notice that proposed rulemaking is underway, allow for public comment, and then respond to those comments as it writes a final rule.

DHS did none of this. The administration says, effectively: ‘No kidding! It’s not a regulation. It’s guidance.’ As such it will be applied to discretionary decisions made case by case within existing regulations.

The states argue that in practice, at least, the guidance is a regulation – it changes the program itself, not just the cases within the program. So far, the courts have agreed.

Third, is the DHS guidance legal? Let’s say it was properly issued. If so, did the administration have the discretion to enact it, based on the Immigration and Naturalization Act? The district court did not directly answer this, but Judge Andrew Hanen clearly thought DHS had gone too far. (Immigration advocates think Hanen’s district was chosen precisely because his opinions on this were no secret.) So did the 5th Circuit. It said the plan “would affirmatively confer ‘lawful presence’ and associated benefits” on a group not identified in current law. Nor did the president’s actions respect the INA’s “intricate process” for granting people “a lawful immigration classification” based on their children’s legal status.

On the other hand, Congress’s annual appropriation for dealing with “removable aliens” amounts to 3.5 percent of the amount needed to actually remove them. The dissenting judge in the 5th Circuit panel argued that DHS therefore had to set priorities; these “are quintessential exercises of prosecutorial discretion.” The administration, not surprisingly, agreed fully, saying that many presidents have acted in similar ways and that courts traditionally give presidents wide deference in such cases — including in 2012’s Arizona v. United States.

Which brings us to the fourth question: “whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.”

This one is a wild card: The justices added it themselves. Why? After all, the fourth question seems to repeat the third. The Take Care clause simply says that the president “shall take care that the laws be faithfully executed.” So if the DHS guidance does not “faithfully” follow the Immigration and Naturalization Act, the administration has already lost the case. Concluding that Obama is guilty of violating the Constitution instead of simply overestimating his statutory authority makes for more dramatic headlines but the same practical outcome.

It could be that the headlines are the point. Perhaps some on the court, disturbed by the longstanding eye-of-the-beholder nature of “faithful execution,” have an eye on Con Law textbooks to come. Perhaps they want to make a Big Statement to warn against future presidential “audacity” in this area.

But this might wind up being mostly symbolic even so. As long as Congress continues to write vague laws, determining whether execution is “faithful” will still be case-specific. Courts will still have to decide whether a given administrative action fits into the shape of the particular hole legislators left in the statute.

I wonder whether the court intends instead to use that Question 4 to revisit last summer’s court debate over broad questions of administrative law. In his concurring opinion to Michigan v. EPA, dealing with the way EPA interpreted the Clean Air Act, Justice Clarence Thomas said he had “serious questions about … our broader practice of deferring to agency interpretations of federal statutes.” His target was the famous Chevron case that specifies that courts should defer to agencies, as long as the way bureaucrats read an unclear statute is “reasonable.” Thomas implied that the courts should be far less shy about saying directly what the law is in such circumstances.

If that view has any other supporters on the court, the case could become less about immigration law and more about general principles of power: Who gets to decide what a statute means? In an administrative state, administrative authority matters very much indeed.

There’s a lot involved in the Texas case, then. Who gets to sue, when? What counts as a regulation? And when does statutory misinterpretation bleed into Constitutional malfeasance? All of the answers could have an important impact on presidential power – not just for Obama, but for his successors.