an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Next Wave of Court Challenges to Obama’s Legacy—Part Two: Texas’ Lawsuit to Undo Obama’s Immigration Initiative and Speaker Boehner’s Challenge to ACA Implementation
The Texas challenge to DAPA
In what the Washington Post’s Karen Tumulty tweeted as “The most underplayed story of the day,” on Friday, July 10, two of the three judges on a Fifth Circuit Court of Appeals panel made clear, during a contentious oral argument, their intent to leave in place a District Court injunction shutting down the Administration’s November 2014 decision to confer “deferred action” treatment on undocumented parents of U.S. citizens or lawful permanent residents, and on undocumented individuals who were less than 16 years old when they arrived here, if they come forward and pass background checks for criminal records or otherwise priority deportable activities.As detailed by Marty Lederman and others, under regulations adopted by the Reagan Administration, and endorsed in 1986 amendments to the Immigration and Naturalization Act, deferred action treatment triggers freedom to work and receive benefits such as the Low Income Tax Credit and Social Security.
The court argument concerned a legal challenge to the Administration’s program, officially styled Deferred Action for Parents of Americans (DAPA), filed by Texas’ high decibel conservative Governor Greg Abbott, on behalf of 25 other Republican-led states. Earlier, on February 17, Texas federal trial judge Andrew Hanen had ruled against the Obama administration, and issued an injunction barring implementation of DAPA nationwide.Texas’ Solicitor General had good reason to file in Hanen’s court; he was well-known for previous over-the-top accusations that the Department of Homeland Security “is clearly not” enforcing immigration laws, “helping those who violate them,” and, indeed, “completing the criminal mission” of transborder human traffickers. Given the echoing hostility vividly on display from Fifth Circuit Judges Jerry Smith and Jennifer Elrod, their decision can pretty well be counted upon to leave Hanen’s injunction in place.To have any hope of salvaging the DAPA program before leaving office in January 2017, President Obama will likely be back before the Supreme Court in a few months.
How will the Court respond?If Chief Justice Roberts stays focused on shielding the judiciary from politically driven, legally flimsy lawsuits that invite perceptions of judicial partisanship, the answer should be straightforward.The Court will dissolve the District Court’s injunction, and dismiss the case on the ground that Texas has asserted no injury that gives it legal “standing” to get into court to present it.That should be a straightforward call, based on the precedents and underlying policies strictly limiting the standing of government entities to involve the federal courts in inter-governmental political fracases.
The alleged injury on which the lower court judges relied to allow Texas to challenge DAPA is that, under Texas law, recipients of deferred action status are entitled to obtain drivers’ licenses, the processing of which will cost the state $130.89 each.But, as Andrew Pincus has pointed out, unlike individual would-be litigants, governmental entities cannot seek federal redress simply for incidental monetary loss, certainly not alleged loss on such a trivial scale. Were the law otherwise, state or local politicians could turn virtually any policy dispute into a court case, simply by alleging adverse cost effects, however minuscule and indirect, from federal policies with which they have a beef.The courts would be deluged, and government programs at all levels could be threatened with gridlock – just as the federal government’s program for implementing its national immigration enforcement priorities is gridlocked by this lawsuit.
Conservative jurists, very much including Chief Justice Roberts and, indeed, Justice Scalia, have been notably strict about enforcing standing rules that keep separate the federal courts from this type of harm’s way.At least, given Roberts’ King v. Burwell admonishments against transparently political litigation, one would expect no departure from those rules, if and when Texas v. United States reaches the Court.Lawsuits by politicians like the notoriously litigation-happy Governor Abbott, after all, put political disputes before the courts more overtly than suits by private activists.
Established standing doctrine, reinforced by Chief Justice Roberts’ aversion to politicization of the judiciary, should preclude the Supreme Court – and should have precluded the lower courts – from reaching the merits of Texas’ claim that the Obama DAPA immigration initiative is illegal and unconstitutional.But it is worth noting that the Administration’s substantive defense of the legality of DAPA, which was powerful before King, is also reinforced by Roberts’ opinion -- in particular, his emphasis on evaluating Executive implementation of statutes in terms of Congress’ “plan.”In the case of the immigration laws, the crux of that plan, pervasively manifest throughout federal immigration statutes, is to delegate broad discretion to the Executive Branch as to how to tailor enforcement priorities to funding resources, consciously limited by Congress,sufficient to remove only a fraction of the total number of undocumented immigrants (400,000 annually, out of a total of more than 11 million).
As recently as 2009, a House of Representatives Committee Report specifically confirmed Congress’ direction to the Department of Homeland Security not to “simply round up as many illegal immigrants as possible,” but to ensure “that the government’s huge investments in immigration enforcement are producing the maximum return in actually making our country safer.”As repeatedly notedby the Justice Department, the DAPA Directive simply sets out guidelines for conferring “deferred action” treatment in accord with enforcement priorities perfectly matching that instruction.As noted above, authorization for such deferred action recipients to work and receive work-related benefits arises from longstanding regulations (promulgated by the Reagan Administration) and statutory provisions – a fact repeatedly stressed by the Administration and its allies, and flatly ignored by the lower court judges who have made this work-authorization consequence the nub of their argument for halting DAPA in its tracks.
Speaker Boehner’s Challenge to ACA Implementation
Even more starkly than in Texas’ assault on Obama’s immigration initiative, standing strictures applicable to inter and intra-governmental policy and political disputes, reinforced by the Chief Justice’s evident concern about perceptions of judicial politicization, should make short shrift of a second pending threat to a major Obama priority – once again, the ACA.This suit, House of Representatives v. Burwell, engineered by House Speaker John Boehner to challenge aspects of the Administration’s implementation of the ACA, has flown under the radar since it was filed in November of last year.
The suit seeks to enjoin payments by the Administration to provide ACA-prescribed subsidies that help cover the cost of deductibles and co-pays that low-income insureds cannot afford when they require medical treatment (even though they have been able to purchase insurance with the help of premium tax credits).The Houseclaims that no funds were specifically appropriated to fund these subsidies.The Administration counters that funding authority comes from other statutory sources that provide for permanent spending authority.
Though the House’s lawyer, George Washington law professor Jonathan Turley, dresses up his claim as an effort to rein in a lawless executive branch spending billions with no authorization, the case is actually a dispute about statutory interpretation – whether the Administration has correctly construed the provisions to which it attributes authorization to fund the cost-sharing subsidies, or not.Were standing granted here, there would be little to stop either house of Congress from casting every policy disagreement with the Executive as similarly “unauthorized,” and put the dispute in the lap of the courts, rather than tussling it out by exercising its myriad routine oversight and legislative options.
Turley argues that applicable precedents denying standing should be disregarded, because the House, by failing to make a specific appropriation for the cost-sharing subsidy reimbursements, had exhausted all available remedies to rectify the alleged Executive misconduct.But that beef is simply incorrect, since the House never attempted to – as, obviously, it could have, and could still – pass a law specifically countermanding the Administration’s interpretation that alternative permanent appropriations authority is available.
On the merits, the Chief Justice’s emphasis, in King v. Burwell, on the ACA as “a series of interlocking reforms” could augur well for the Administration’s common sourcing of appropriations for ACA tax credits and cost-sharing subsidies, under challenge in House v. Burwell.But the principal signal from the Court’s stern King rebuff should be to bar courts from taking jurisdiction over House Speaker Boehner’s litigation venture altogether, without reaching the merits. Simon Lazarus is Senior Counsel to the Constitutional Accountability Center. You can reach him by e-mail at simon at theusconstitution.org Posted
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