WASHINGTON – 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 Barack 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.
Follow Dana Milbank on Twitter @Milbank.