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 very practical reason the Supreme Court should decide the DAPA case this Term
The parties in United States v. Texas, No. 15-674, disagree about when Texas ought to be required to file its brief in opposition to the federal government's petition for certiorari: Texas has requested an extension until January 20, 2016. The United States, on the other hand, has asked the Court to set a deadline of December 29, 2015 for Texas's response, so that the Court can consider the petition at its January 15, 2016 Conference. If the Court were to grant the petition on January 15, the case could be argued in April without much, if any, adjustment to the ordinary merits briefing schedule. The Solicitor General has further informed the Court that if the petition-stage briefing does extend into January, and the Court does not consider and grant the petition until a Conference after January 15, he will move the Court to set oral argument for a special May session so that the Court can decide the case this Term. (The Court has heard arguments in important cases in May before--including, for example, in Raines v. Byrd, the first "Line-Item Veto Act" case, in which the Court accepted the case on April 23, 1997, heard oral argument after full briefing on May 27, and issued a split (7-2) decision on June 26.) More on the details of this timing dispute from Lyle Denniston here.
Regardless of how long an extension the Court grants Texas to file its brief in opposition, the Court should set argument in the case this Term, and decide it by the end of June 2016, for a very practical reason--one that can be seen clearly by considering the two principal, possible dispositions of the case. If, on the one hand, the Court affirms the decision of the Fifth Circuit, then the date of decision will not have had any practical impact: the status quo will continue from today into the future, whether the Court acts in June 2016 or in January or June 2017. But on the other hand, if the Court reverses the court of appeals, and rules for the federal government, then any delay in the decision will necessarily result in irremediable harms to the government and to the DAPA aliens and their families during the period between June 2016 and whenever the Court were to decide the case next Term.
As I explained here last week, the court of appeals issued a decision with a very odd, if not counterintuitive, disposition: The government is not enjoined from implementing its policy to forbear from removing the DAPA-eligible aliens from the United States--indeed, the court of appeals in effect acknowledged that Congress has afforded the Secretary of Homeland Security the broad and unreviewable discretion to implement such a removal-forbearance policy. Therefore, the DAPA aliens presumptively will not be removed, and presumably will remain in the United States, unless and until Jeh Johnson or his successor decides to remove some or all of them. However, the court of appeals also held that Secretary Johnson is effectively prohibited from authorizing employers to hire such aliens, notwithstanding a decades-old regulation that provides for such "work authorization."
This creates the anomalous situation (the SG refers to it as a "half-measure") in which more than four million aliens--all of whom by definition already have long ties to the community--will presumably remain in the United States, without substantial fear of being removed, but cannot become part of the legal workforce. Those aliens, therefore, either (i) will be unemployed--and thereby will not only be unable to support their children (who are U.S. citizens and permanent residents), but will actually impose a heavy burden on their extended families and communities--or (ii) will work "off the books," typically on a pay scale that depresses the wage market for all other employees, and the federal and state governments will then be unable to collect employment-related taxes.
Given that status quo situation, let's look at what would happen under the possible dispositions of the appeal by the Supreme Court:
If the Court affirms the judgment below, the status quo will continue indefinitely into the future (i.e., until Congress or DHS changes it): Most of the DAPA aliens will remain in the United States, but the Secretary will not be able to authorize employers to lawfully hire them. If this is the Court's disposition, then it will not have mattered whether it issued its decision in June 2016, or January 2017, or June 2017, or any other date: Throughout the entire period, and beyond, the government and the aliens will be in exactly the position they find themselves in today.
If, however, the Court reverses the judgment below, and holds that the Secretary does have the legal authority to authorize employers to hire the DAPA aliens, it will mean two things: First, well, employers will then be able to lawfully hire such aliens. But second--and more importantly for purposes of the timing question--it will mean that between today and the date of the Court's decision, the Secretary will have been denied his lawful authority to authorize such hiring, and employers and the DAPA aliens will have been prevented from entering into open, lawful work arrangements, even though (as the Court will have held in this scenario) they ought to have had the lawful opportunity to do so. In other words, the aliens will have been unemployed, or working "off the books," even though they would and should have been able to be working openly all that time, if only the lower courts had not erred. (There is another, related possibility: The Court might hold that Texas lacks Article III standing to challenge the policy and the work authorization. If so, the Court would not opine on the lawfulness of the policy, but it would nonetheless conclude that the district court lacked the authority to enjoin DHS's actions--in which case employers should still have been able to hire the DAPA aliens during the period in question, but would have been prevented from doing so.)
And so, in this second possible scenario, it matters a great deal when the Court issues its (hypothetical) reversal. If, for example, it issues such a decision in June 2017 rather than in June 2016, that will have meant unemployment or off-the-books employment of millions of aliens for an entire year, even though the law did not, in fact, compel such a situation (or, at a minimum, that there was no warrant for the trial court to enjoin the work authorization). And that, in turn, will mean the imposition of real, palpable costs for millions of families, and the government and other workers (in terms of tax revenues and wage scales)--costs that cannot be remediated.
For this reason alone, the Court should hear and decide the case this Term, regardless of what it decides about the petition-stage briefing schedule.*
One, other, related consideration is worth flagging, too: It is possible Texas will argue that the court of appeals did not go far enough: Texas might ask the Court to hold, as it alleged in its complaint, that the Secretary has abused his discretion not only in authorizing employers to hire the DAPA aliens, but also in forbearing to remove such aliens. (As I discussed last week, that removal forbearance was, in fact, the focus of the criticisms and defenses of the DAPA policy until very recently.) If Texas does seek such a disposition, then it, too, has an interest in a decision of the Court this Term, because Texas, too, will be seeking a change in the status quo. If, for example, the Court were to hold that DHS cannot forbear removal, and must continue to remove such aliens, then a decision in June 2017 will have meant an extra year of the presence in the United States of such aliens as DHS would have been able to remove in that time period.
* In its motion, Texas notes that when the court of appeals denied the government's motion to stay the preliminary injunction pending appeal, the Solicitor General did not ask the Supreme Court to stay that injunction. That earlier decision by the government, however, does not in any way affect or undermine the argument I've offered in the text: It remains true that expedition of the case would minimize palpable and irreparable harms if the Court rules for the government, whereas there'd be no downside to expedition if the Court affirms the Fifth Circuit.
In any event, the SG's decision not to seek an earlier stay from the Court is not inconsistent with his current request for the Court to decide the case this Term. For one thing, the standards for such a stay are much more demanding than the "standards" (basically, the Court's own preference) for when the case is to be scheduled for argument. Moreover, a stay would have affected what would have happened between last summer and next in a way that could have resulted in a very confusing and awkward back-and-forth dynamic: Employers would have been free to hire the aliens as of May or June of 2015, but only with the prospect that the Supreme Court might hold that such hiring was unlawful in June of 2016 or 2017--which would presumably then mean they'd have to fire those employees who had previously been hired. Posted
by Marty Lederman [link]