United States et al. vs. Texas et al.: A Political Question for November

In a nine-word per curiam decision, eight justices of the United States Supreme Court have revealed they are deadlocked in a 4 to 4 divide on the new immigration procedures of the Obama administration, with its executive decision to not deport the immigrant parents of children born in the United States (thus citizens) and give them legal status but less than citizenship in the process. The State of Texas, joined by 25 others states, filed a lawsuit to block this executive action, which affects between 4 and 5 million immigrants in the United States. The case was before the Supreme Court because implementation of this new immigration policy was preliminarily enjoined at the request of the 26 states by the United States District Court in Texas, an action approved by the Fifth Circuit Court of Appeals, which was appealed to the Supreme Court by the Obama administration.

This fully briefed case includes over two dozen amicus briefs because of the interest in the fate of so many millions of people; it was argued before the Supreme Court on April 18, 2016, some two months after Justice Antonin Scalia’s death left the vacancy on the court. On June 23, 2016, the divided and deadlocked Court ruled: “The [lower court] judgment is affirmed by an equally divided Court.” The case now returns to the District Court in Texas for a trial, which has been largely determined based on the appeals, however. Nonetheless, it will proceed.

In fact, there are solid legal arguments on both sides of the legal issues. We do not know for certain the basis of the division at the Supreme Court, but the lower court actions raised issues of the standing of Texas (and other states) to bring such an action; the justiciability of the issues being susceptible to resolution by federal courts; whether the Obama Administration should have followed, but failed to, the provisions of the Administrative Procedures Act; and whether President Obama violated the Constitution in failing to “take care” that the immigration laws were faithfully enforced.

For those interested these issues, they arose first at the district court level, where Judge Andrew Hanen wrote an extensive—and beyond the norm of typical trial court scholarship—analysis on the question of standing. He did not address either the “take care” or justiciability issues. Rather he found that Texas did have standing because of the impact the new status of immigrants would have under Obama’s program on the cost of issuing driver’s licenses in Texas. It was the dissents at the Fifth Circuit that raised the question of justiciability, first in Judge Higginson’s dissent when addressing the government’s request to stay the District Court’s ruling, and then by Judge King’s dissent (which drew on Judge Higginson’s work) when denying the government’s appeal of the District Court’s injunction. While Texas raised the “take care” issue, neither the district nor appellate courts addressed it. The nine-word per curiam holding of the Supreme Court does not reveal who fell where on any of the issues before the Court, but this is not very difficult to surmise.

This case has been conspicuously political from the outset. The twenty-six states, the plaintiffs who filed the initial case, shopped it to find a federal trial court where they believed they had the best chance of prevailing—which was Judge Hanen’s court in Brownsville, Texas. The plaintiff states—listed in the order they are found on the pleadings: Texas, Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, Maine, North Carolina, Mississippi, North Dakota, Ohio, Oklahoma, Florida, Arizona, Arkansas, Michigan, Nevada and Tennessee—all have either Republican governors or legislatures, or both, not to mention most of them have long records of being anti-immigrant.

All the judges who have ruled in favor of the plaintiff states against the Obama administration’s new immigration policy have been appointed to the federal bench by Republican presidents, namely U. S. District Court Judge Andrew Hanen (Bush II), and Fifth Circuit Court of Appeals Judges Jerry Edwin Smith (Reagan), and Jennifer Walker Elrod (Bush II); while the two Fifth Circuit Judges who dissented to allow the new immigration program to proceed were appointed to the bench by Democratic presidents: Stephen Andrew Higginson (Obama) and Carolyn Dineen King (Carter).

It appears that the U.S. Supreme Court had a similar political split based on the party of the president who appointed them with Chief Justice John Roberts (Bush) and Associate Justices Anthony Kennedy (Reagan), Clarence Thomas (Bush I) and Samuel Alito (Bush II) on one side with Associate Justices Ruth Bader Ginsburg (Clinton), Stephen Breyer (Clinton), Sonia Sotomayor (Obama), and Elena Kagan (Obama) on the other. It is difficult to envision any other breakdown.

This is hardly surprising. Public intellectual and federal Judge Richard Posner, who sits on the U.S. Court of Appeals for the Seventh Circuit, addresses the reality of political decision making in the federal judiciary in his fascinating book How Judges Think (Harvard Univ. Press, 2008). He finds the fact that judges bring their political attitudes to the cases before them is a fact of judicial life. Judge Posner writes: “Every lawyer knows that the accident of which judges of a Court of Appeals are randomly drawn to constitute the panel that will hear his case may determine the outcome if the case is controversial. Every judge is aware of having liberal and conservative colleagues whose reactions to politically charged cases may be predicted with a fair degree of accuracy even if the judge who affixes these labels to his colleagues would not like to be labeled politically himself.”

Posner describes the Supreme Court as a “political court.” More specifically, he explains:

A constitutional court composed of unelected, life-tenured judges, guided in deciding issues at once emotional and political only by a very old and in critical passages very vague constitution as difficult to amend as the U. S. Constitution is, is bound to be a powerful political organ unless, despite the opportunities presented to the Justices, they manage somehow to behave like other judges. But how can they, when with so little guidance from the Constitution they are asked to resolve issues of great political significance? Political issues by definition cannot be referred to a neutral expert for resolution. A political dispute is a test of strength in which the “minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority.” [Citing James Fitzjames Stephen, Liberty, Equality, Fraternity 21 (1993 [1873]).] Political issues can be resolved only by force or one of its civilized substitutes, such as voting – including voting by judges in cases in which their political preferences are likely to determine how they vote because of lack of guidance from the constitutional text.

The problems relating to immigration have arrived in federal court because the political branches— Congress and the president—have been unable to address and resolve these political problems. While there is a so-called “political question” doctrine, first established in Luther v. Borden, 48 U.S. 1 (1849), where the Court said they should not decide inherently political matters properly within the purview of Congress and the president, it has always struck me as a political decision by courts when they invoke the doctrine, picking and choosing issues which they take on. Courts often employ other dodges to avoid taking jurisdiction of such political matters, like whether the matter is justiciable—an issue over which the court has jurisdiction. (Here the dissenters felt these immigration decisions were within the exclusive discretion of those charged by Congress with enforcing the immigration laws.)

The issues underlying Texas et al. vs. U.S. et al. are very much a part of the 2016 presidential contest. Presidential candidate Donald Trump claims he has the answer. He’s going to round up some 11 million illegal immigrants in the United States and deport them all. To keep them from reentering he’s going to build a “huge” wall along our southern border—a plan that he clearly has not carefully considered. In fact, he does not have the money to undertake either an immigrant dragnet or to construct a wall, and only Congress can appropriate it, which is not likely.

With Congress refusing to address the problems of immigration, and federal courts inclined to stay out of the matter by invoking the political question doctrine, and the Supreme Court deadlocked until after a new president takes office, I anticipate a lot of wasted time and money as these issues bounce around in the federal courts in the coming years, and no one is going to be happy. Not those who are anxious because millions of undocumented immigrants are in the United States, nor those illegal immigrants who are in the United States and have given birth to United States citizens, nor those citizen children whose parents are now at imminent risk of deportation—for no one is going to find satisfaction in the courts.

If Trump is elected president, and appoints conservative Supreme Court justices, which he says he will do, efforts by the executive branch to find a temporary solution for the millions of illegal immigrants with American children will be permanently abolished, and President Trump can undoubtedly create a hellish situation for the millions who entered the country illegally. It is doubtful he can remove them, however. If Hillary is elected, and Democrats win control of Congress in the process, millions of these illegals will be given a road to U.S. citizenship, at best; at worst, temporary legal status where they will not live in fear of deportation.

Americans who fear or dislike immigrants will undoubtedly vote for Trump. Those who believe immigrants can and will make good Americans—like millions upon millions who preceded them in making this country—will vote for Hillary. So the larger issues raised by Texas et al vs. U.S. et al will most likely be resolved at the polls this November.