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
Notes on Texas's nominal Brief in Opposition in the DAPA litigation
Last week, Texas filed its response to the federal government's petition for certiorari in No. 15-674, United States v. Texas. The government just filed its reply brief. The Court will consider the petition at its conference one week from Friday.
Five quick reactions to the new briefs:
1. Texas's brief is effectively an acquiescence, not an opposition. Although its brief is nominally styled as a "Brief in Opposition," and although the Conclusion reads that "[t]he petition for a writ of certiorari should be denied," Texas does not really offer any reasons for the Court not to accept review now, other than the assertion that the court of appeals' decision was correct ("Petitioners urge a view of Executive power that is manifestly contrary to our separation of powers. Certiorari is therefore unwarranted."). Texas mentions in passing that the case is in an interlocutory posture, but the State does not suggest that anything different might occur if the case were to proceed to trial, and for good reason: the court of appeals' decision effectively determined the merits of the case and, as the government notes, its "legal rulings are definitive, not tentative." Most importantly, Texas does not dispute, or even address, the most important practical reason that review this Term is warranted, which I discussed here--namely, that although there would be significant harm in the interim if the Court were to delay consideration and then rule that DAPA is lawful, there's no prospect of additional harm to anyone in consideration of the case this Term, regardless of outcome.
At almost every point, Texas's brief concedes, rather than denies, the importance of the case: Indeed, Texas somewhat hyperbolically insists that what is at stake is nothing less than "the proper functioning of the administrative state" and "maintain[ing] the separation of powers." In effect, then--even if not as a formal matter--Texas's brief is an acquiescence, not an opposition. 2. There's no distinct constitutional question. The court of appeals did not reach Texas's nominal "constitutional" claim, brought pursuant to the "Take Care" Clause of Article II. In passing, Texas mentions that its constitutional claim is an "independent bas[i]s to affirm," but it only devotes a desultory paragraph (p.37) to the constitutional argument, in which it merely claims that DAPA is "'incompatible with the expressed or implied will of Congress'" (quoting "Category 3" of Justice Jackson's Youngstown concurrence).
As I explained in the first three points of this post, however, there's not really an independent constitutional claim in the case--no more so than there is whenever anyone challenges the executive's interpretation of its statutory authorities, which happens every day. The executive here purports to act pursuant to statutorily delegated discretion. Texas denies that Congress has conferred such authority. And thus what is at stake is simply a question of statutory interpretation, about the nature and scope of discretion that Congress has conferred upon the Secretary of DHS. In contrast to a case such as Zivotofsky, the President and Secretary of DHS are not invoking any Article II authority, let alone an authority to override or disregard statutes (which is what Youngstown "Category 3" is all about). 3. Texas's substantive argument goes far, far beyond DAPA--it's a full-throated challenge to Reagan-era work authorization regulations that have allowed dozens of categories of aliens to be employed for many decades. As I discussed here a few weeks ago, the district court and the court of appeals effectively conceded that Congress has afforded the Secretary broad, unreviewable discretion to decide which aliens to remove from the country. What the lower courts purported to invalidate, then, was not the failure to remove aliens, but instead (primarily) the work authorization that comes with DAPA status--something that occurs not by virtue of the DAPA policy itself, but instead pursuant to a regulation that has been on the books since the Reagan Administration. The court of appeals alarmingly held, on the merits, that the immigration statutes do not empower the Secretary to permit such hiring, or, for that matter, to authorize employers to hire any classes of aliens other than those that the statute specifically enumerates for work authorization.
Texas now wholeheartedly adopts the court of appeals' reasoning. Importantly, Texas does not appear to challenge the Secretary's authority to make discretionary nonremoval decisions. The heart of its challenge relates to work authorization. And at pages 33-35 of its brief, it argues that "the Executive may provide work permits only to the classes of aliens specified by statute" to be eligible for work authorization. That argument, if credited, would upend over a half-century of administrative practice--a practice that Congress is very familiar with, that Congress effectively ratified in 8 U.S.C. § 1324a (see my posts here and here), and that Congress has never questioned. Moreover, as the government notes at pages 10-11 of its reply, Texas is now in effect trying to reopen, in litigation, a challenge to the regulation that was raised and rejected almost 30 years ago.
The court of appeals' rationale, which Texas embraces, would in one fell swoop make it unlawful for employers to hire many categories of aliens who have been openly employed, with the approval of the Attorney General and/or DHS Secretary, for many years. For example, according to a recent government brief in another case currently pending in district court, the current regulation (see, e.g., 8 C.F.R. §§ 274a.12(a)(11), (c)(1-7), (9-12), (14-17), (21), (26)) authorizes more than a dozen categories of aliens to apply for work authorization even though no statute specifically or implicitly authorizes those aliens to work--including (but not remotely limited to) not only DAPA aliens but also many other aliens who have been afforded "deferred action" status.
Thus, this isn't simply a peripheral or ancillary part of the suit: It's at the heart of the court of appeals' decision, and of Texas's brief. There is, therefore, a lot at stake in the case, beyond simply the DAPA policy, which is significant enough in and of itself.
4.The DAPA policy does not purport to "deem lawful" any unlawful conduct by aliens. The Texas brief repeatedly argues that the case is not only about work authorization and related benefits incident to work (such as Social Security), but also about the agency's alleged conferral of a new status upon the aliens in question--"lawful presence." And, according to Texas, this new status has the legal effect of altering what is legal and what is unlawful. The DAPA policy, it claims, is an effort "to deem unlawful conduct as lawful," or to "pronounce 'that otherwise-prohibited conduct will not violate the Act'” (quoting Utility Air Reg. Group v. EPA). And thus, at the end of its brief, Texas ominously warns: "[I]f petitioners’ arguments are accepted, there is nothing stopping this Executive or future Executives from invoking resource constraints to declare conduct lawful in other areas—such as environmental, tax, criminal, campaign finance, and civil-rights laws."
This simply mischaracterizes the effect of deferred-action status. That status does not declare, or deem, that any previously unlawful conduct by aliens is now lawful. It does, of course, trigger application of the underlying, decades-old work authorization regulation, which makes it lawful for employers to hire such aliens (see Point 3, above). But Texas's argument here is that deferred-action status also purports to affect the legality of the aliens' own conduct. And that's mistaken. Such status does not afford aliens an immunity from culpability for, or a defense to, any unlawful conduct they might have engaged in, or a legal “green light” to violate the law. It does not, for instance, immunize aliens against criminal penalties for past violations of the law, such as for entering the U.S. without authorization. Nor does it offer a defense to the civil consequence of continued presence: A deferred-action alien remains removable, and DHS has the discretion to remove the alien at any time. See the government reply brief at 7.
As the government explains in its petition:
[I]nsofar as deferred action itself is concerned, “lawful presence” is simply the label for the consequence of memorializing a decision to forbear from enforcement action for a designated time: A decision to forbear from removing a person results in “lawful presence” in the sense that DHS has decided to countenance that person’s continued presence in the United States so long as DHS continues to forbear.
5.The Court should reject Texas's strikingly expansive theory of "self-generated" standing. In any event, the Supreme Court could, and should, avoid reaching the merits, because Texas lacks Article III standing. Texas's principal argument for why it has standing--the ground on which the court of appeals ruled--is, in short, the following:
i. The State voluntarily chose, at an earlier time, to subsidize drivers' licenses for many Texas residents, including those that the federal government has placed in "deferred action" status and/or authorized to be hired to work.
ii. DAPA--like all deferred action decisions, and like many other work authorization decisions over the years--expanded the category of persons in Texas whom the federalgovernment has placed in "deferred action" status and/or authorized to be hired to work.
iii. That change in the federal government's application of its own rules means that--by virtue of its decision to tether its drivers' license policies to federal action--Texas will now subsidize drivers' licenses for a greater number of its residents, thereby costing it more money. That's an "injury" allegedly caused by the new federal policy.
iv. Of course, Texas could change its drivers' license subsidy rule so that the subsidy is no longer available to the new DAPA aliens. (Texas asserts in its brief (at 17) that it is "forbidden" from creating its own drivers' license classifications. That's not correct, however. As the federal government explains in its reply brief at 4-5 & n.2, although Texas might not be free to draw any and every classification it wishes--federal law would likely preclude Texas from singling out DAPA aliens, in particular, for disfavored treatment--the State has several other available line-drawing options that would result in not subsidizing DAPA aliens' licenses.) This, too, would "injure" the State, claims Texas, because it would require a change in state law.
As the federal government explains, this "self-generated approach to standing" would be a "radical expansion of Article III standing, which lacks any principled limitation." It is common for one sovereign to choose to tether its own rules to some action of another sovereign that can itself be changed. Surely it can't be the case that whenever a State "makes a voluntary choice to tie a state-law subsidy to another sovereign’s actions," the State thereby obtains standing to sue the other sovereign state "whenever the latter's [change in] actions ha[s] the incidental effect of increasing the cost of that subsidy." The government offers a couple of analogies to demonstrate the implications, which Texas does not deny (reply brief at 1-3):
Respondents do not
dispute, for example, that under the court [of appeals]’s “pressure”
theory, Texas would have standing to challenge
federal policies for parole or asylum based on the
State’s independent voluntary choice to subsidize
driver’s licenses for parolees or asylees. And the court’s theory cannot be limited to immigration.
Respondents do not dispute, for instance,
that any State that borrowed the federal definition of “adjusted gross income” would thereby have standing
to challenge an Internal Revenue Service ruling affecting