Supreme Court stuck in neu­tral

Cecil Whig - - OPINION - Dana Mil­bank

— Vis­it­ing jus­tices from Canada’s high court sat in on Mon­day’s im­mi­gra­tion ar­gu­ments be­fore the Supreme Court — and af­ter their 90-minute ed­u­ca­tion in the cur­rent state of Amer­i­can ju­rispru­dence, our neigh­bors to the north would be for­given if they had fan­tasies of build­ing a bor­der wall of their own.

The Se­nate’s re­fusal to con­firm a re­place­ment for the late Jus­tice An­tonin Scalia has left the U.S. high court evenly split and in­creas­ingly par­a­lyzed. As the jus­tices heard ar­gu­ments about Pres­i­dent Obama’s ex­ec­u­tive ac­tions on il­le­gal im­mi­gra­tion, there were re­ally only two pos­si­ble re­sults: chaos or more chaos.

A di­vided Congress couldn’t agree on leg­is­la­tion to deal with the 11 mil­lion im­mi­grants here il­le­gally. Obama tried to do some­thing on his own — use his ex­ec­u­tive au­thor­ity to de­fer de­por­ta­tion of par­ents of chil­dren who are Amer­i­can citizens — and the rift grew deeper. Texas, sup­ported by 25 other states, most led by Repub­li­can gov­er­nors, sued. Six­teen other states and the District of Columbia filed briefs on the other side. The GOP-led U.S. House sued as well, but 186 mem­bers of the House and 39 se­na­tors (vir­tu­ally the en­tire Demo­cratic cau­cus) filed op­pos­ing briefs.

Now the Supreme Court has to rule on Obama’s DAPA pol­icy (De­ferred Ac­tion for Par­ents of Amer­i­cans). But with no ex­pec­ta­tion that the jus­tices can reach agree­ment on the mer­its of the case, that leaves two op­tions:

Chief Jus­tice John Roberts joins the lib­er­als in dis­miss­ing the case on a tech­ni­cal­ity — that Texas doesn’t have stand­ing in court. This would leave it un­clear whether DAPA is le­gal and set off con­fu­sion in the country as other en­ti­ties try to file suit and the ad­min­is­tra­tion tries to en­force its legally am­bigu­ous pol­icy.

Or, the jus­tices come to a 4-to-4 tie on the mer­its of the case, and even greater chaos en­sues. An ap­pel­late rul­ing in­val­i­dat­ing the law stands, at least in part of the country. Cases will be brought in other cir­cuits, prob­a­bly caus­ing dif­fer­ent views of the law to arise in dif­fer­ent parts of the country.

“With ei­ther of th­ese two pos­si­bil­i­ties you have chaos about whether DAPA is le­gal or not,” says Neal Katyal, the Supreme Court lit­i­ga­tor with Ho­gan Lovells who filed a brief in the case from for­mer im­mi­gra­tion of­fi­cials sup­port­ing the ad­min­is­tra­tion.

The cur­rent con­fu­sion, fol­low­ing


the 4-to-4 split in an im­por­tant la­bor case, is an­other in­di­ca­tion that the Supreme Court is strug­gling to func­tion. The jus­tices have granted only three cases since Scalia died, ac­cord­ing to a list kept by the court, a fig­ure Supreme Court watch­ers say is ex­traor­di­nar­ily low. “They’re tend­ing away from de­cid­ing much, and when they do reach de­ci­sion, it is of­ten a very nar­row rul­ing,” Katyal tells me.

On Mon­day, the jus­tices seemed split down the mid­dle, both on the mer­its of the case and the ques­tion of stand­ing. Roberts said Texas’ po­si­tion, that it would lose money be­cause it would have to is­sue driver’s li­censes to those aided by Obama’s or­der, was “the clas­sic case for stand­ing,” and he ac­cused the ad­min­is­tra­tion of putting Texas in a “Catch-22.”

Jus­tice An­thony Kennedy, too, said that the pol­icy was be­ing done “back­wards” and “up­side down” and that the de­ci­sion should be “a leg­isla­tive, not an ex­ec­u­tive, act.”

But Jus­tice So­nia So­tomayor ridiculed the claim that the ex­ec­u­tive or­ders would have a neg­a­tive eco­nomic im­pact on Texas. “Those nearly 11 mil­lion unau­tho­rized aliens are here in the shad­ows — they are af­fect­ing the econ­omy whether we want to or not,” she said. “If Congress re­ally wanted not to have an eco­nomic im­pact, it would al­lot the amount of money nec­es­sary to de­port them, but it hasn’t.”

No­body dis­puted that the ad­min­is­tra­tion has the dis­cre­tion to de­fer ac­tion on cer­tain il­le­gal im­mi­grants. What dis­turbed lawyers for the House and for Texas was that those who re­ceive such “de­ferred ac­tion” are, un­der long-stand­ing fed­eral law, el­i­gi­ble to ap­ply for au­tho­riza­tion to work based on eco­nomic need, even though they don’t have le­gal sta­tus.

Erin Mur­phy, rep­re­sent­ing the House, said flatly that “Congress has passed a statute that says if you are liv­ing in this country with­out le­gal au­thor­ity, you can­not work.”

But Don­ald Ver­rilli, the ad­min­is­tra­tion’s so­lic­i­tor gen­eral, pointed out that, even with­out DAPA, there are mil­lions of peo­ple who don’t have le­gal sta­tus but legally work in the United States. They would be out of luck — and out of work — un­der the law as the House Repub­li­can ma­jor­ity would like it to be in­ter­preted.

Toss­ing mil­lions from their jobs would cause chaos. But chaos is what you get when you side­line the Supreme Court.

Dana Mil­bank is a syn­di­cated colum­nist. Con­tact him at danamil­bank@wash­

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