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

Updated:
Posted in: Immigration Law

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.

  • tuckerfan

    In reality, deporting all, or at least most, of the illegal immigrants would not be all that difficult. It would be very expensive, but not difficult. The leftists who scoff and claim it would be impossible do so by raising several straw men, the most obvious of which is an arbitrary timeline. Given a lot of money, several years of time and coordination between departments we could easily identify most illegals, apprehend a significant percentage of those, and deport a significant percent of those. If we reduced to illegal population by as little as 50% it would be a huge win for our country and culture. Nobody is suggesting we need to round-up and deport all 11 million by next Thursday,we are suggesting that the law of the land is; we get to decide which alien gets to live here and which doesn’t, The ability to cross a river does not impose on us the burden of providing you a home, benefits and succor.

    • 98C3LCMT9Y4

      And why do you believe it would ‘not be all that difficult?” America has no requirement to carry a national identification card. Are you suggesting that everyone walking the streets be stopped & interrogated? How happy are YOU going to be the 30 or 50th time that YOU are stopped and questioned. You do realize that ‘they’ do not have identifying marks. Or are you demanding that anyone who speaks as ungrammatically as a Palin ‘merican be stopped & questioned.

      And what does “expensive” mean to you? With a population exceeding 320 MILLION people spread over 3.8 MILLION SQUARE MILES, how many interrogation squads are you willing to fund and at what price per individual and for how long. Pays & benefits per individual will be north of $100,000 per year [at a minimum] and that is not including any support functions such as housing, food, training, medical, transportation, lawyers [who will be a whole lot more expensive] to determine if any of those detainees have had their rights stomped on [as our Constitution does give anyone within our borders certain rights.]

      So, how much are you personally willing to have your taxes go up to remove people that you feel are would be a ‘win for your country and culture.’ How many times are you personall willing to be stopped & questioned to prove that your personal ‘papers’ are valid? How many times do you want your family members to be stopped & questioned?

      Perhaps the government should insist that real ‘citizens’ start carrying national id papers & present them when stopped for questioning as well as, perhaps, wear a large yellow star on all their clothes to indicate they are ‘citizens’ and that would allow the search squads to focus on the rest of the population. Eventually, every ‘citizen’ would have national id papers & a big yellow star and you could feel safe from the infuence of that other ‘culture’ you appear to be so afraid of.

      • tuckerfan

        Gee, let me begin at the end of your screed. I don’t fear other cultures, I’m widely traveled and reasonably social. I find it charming that leftists assume that because someone doesn’t embrace their cause they must be afraid or a bigot.

        What I dislike is the burden imposed, not accepted, by illegal migration. Culture matters, and in mostly negative ways the illegals are impacting ours. At a Donald Trump rally in San Jose CA a teeming horde showed up, waving Mexican flags and attacking the people trying to get in. No one knew what they were sayin, becasue they were screaming in Spanish. Illegals impact our communities, schools and hospitals. While they represent a (modest) net gain to business and the Federal government, that gain is in part due to that fact that the local communities absorb the burden of serving them.

        Our country has always welcomed migrants, and they have always come her legally, learned our culture and adapted to it in public (My grandparents spoke Gaelic at home and English in public).

        As to how, we don’t need ID cards or (thanks for the colorful Nazi reference, the last refuge of the impotent) or markings. We simply need to go where they go, farms, construction sites, Home Depot parking lots etc. Vet each person, and keep the criminals. Use basic police technique to get the suspect to identify his or her circle. Arrest those, rinse repeat. It only took 4 decades to round up the La Costa Nostra, and they were well funded and well connected. To discourage the revolving door of catch and release make illegal entry into the US a felony for the third offense. Since most of these invaders are coming for economic reasons, prison for 3 – 5 years would be a probably deter a 4th attempt.

        Comparing the cost to a National Guard Deployment, done every week I’m guessing (very rough guess) that the whole program would cost about 45 billion, or roughly half the cost of ESL mandates, free medical care and lost wages to citizen workers.

    • g kelly

      Deporting 11 million undocumented residents would undoubtedly be expensive. Adding to that expense would be the cost of raising their US citizen children who do not elect to leave with their parents. We can also wave ‘goodby’ to American agriculture, which relies very heavily on immigrant labor. The cost of restaurant meals would also rise if employers are forced to hire and pay US citizens to wash dishes and perform other low-skill jobs. I think we can count on the Chamber of Commerce to oppose any such plan and also the politicians who back it. As for “providing… a home, benefits and succor,” most of the undocumented provide their own homes, don’t get benefits, and are not generally eligible for “succor.” That said, Obama has deported many more undocumented persons than any previous president.

      • tuckerfan

        A guest worker program allowing legal entry would more the meet the needs of the Agg sector.

    • LoneTree, WY

      “…by as little as 50%…”?!?!
      5 1/2 – 6 million hardly qualifies as ‘little.’

  • I understand Texas’s legitimate financial concerns re being a point of illegal immigrant entry, primarily from the south, but basing its suit on the burden of issuing driver’s licenses is ridiculous. Aside from all the other associated costs, surely it is worse to add incompetent and uninsured drivers on the road.

    And let’s get real. Most Americans are, or are the offspring of, immigrants,. We could secure our borders if we really wanted to. It is business that supports illegal immigration. After the occasional INS bust that removes undocumented workers, businesses quickly replace them with a new batch who are similarly too afraid and/or uninformed to report violations of labor law and other illegal acts. Until businesses are meaningfully penalized they will continue their illegal acts and exploitation of the poor to enrich the few.

    But the way campaigns are currently funded precludes effective enforcement. This will not stop until We the People “man up” and support candidates who will really represent us. I suggest legislation titled The Fair Elections Fund–a Whole New Ball Game.

  • Frank Willa

    Thank you Mr. Dean for your review of the immigration case and the underlying political ideology that seems to be driving its outcome in the courts. In my view the conservative scapegoating of the immigration issue as one of the reasons that so many have been left behind- that is a lower standard of living, drives the authoritarian followers to refuse to move forward and find a political resolution in congress. Last session there was a bill that had passed the Senate and only needed to be put up for a vote. There was no doubt that a majority supported its passage; however the Speaker thwarted the will of the majority by refusing to hold the up or down vote. He allowed the issue to continue; in what I take as a calculated move to continue to exploit the issue in future elections. My view is that this scapegoating is parallel to what happen with the recent Brexit vote; blaming the immigrants for the gulf in income inequality or the “globalization reason” , rather than the systematic reduction in wages and salary by the greed of the wealthy. So, as long as this issue remains, addressing the declining standard of living will remain unaddressed.

  • Frank Willa

    Thank you Mr. Dean for your review of the immigration case and the
    underlying political ideology that seems to be driving its outcome in
    the courts. In my view the conservative scapegoating of the immigration
    issue as one of the reasons that so many have been left behind- that is
    a lower standard of living, drives the authoritarian followers to
    refuse to move forward and find a political resolution in congress.
    Last session there was a bill that had passed the Senate and only needed
    to be put up for a vote. There was no doubt that a majority supported
    its passage; however the Speaker thwarted the will of the majority by
    refusing to hold the up or down vote. He allowed the issue to continue;
    in what I take as a calculated move to continue to exploit the issue in
    future elections. My view is that this scapegoating is parallel to
    what happen with the recent Brexit vote; blaming the immigrants for the
    gulf in income inequality or the “globalization reason” , rather than
    the systematic reduction in wages and salary by the greed of the
    wealthy. So, as long as this issue remains, addressing the declining
    standard of living will remain unaddressed