Originalism sits uneasily with the concept of independent agencies, and textualism raises questions about the basis for some agencies' independence.
Yesterday, the Supreme Court heard extended oral argument in the litigation over the administration’s Deferred Action for Parental Accountability “DAPA” program, which would grant “deferred action” and along, with it, work authorization and other government benefits to over four million unauthorized aliens (chiefly, parents of U.S. citizens). Most of the argument—frustrating, over long stretches—focused on two issues: the plaintiff-states’ “standing” (constitutional and statutory) to litigate the case; and DAPA’s grant of “lawful presence” to millions of immigrants. The liberal justices harped on the former issue; the conservatives, on the “lawful presence” business. Merits-wise, that esoteric question—rather than grand first-order questions about the scope of the Executive’s constitutional authority—appears to have emerged as the central issue. But then, big constitutional cases often turn on nuances and details.
Everyone agrees on the basic proposition that the executive can’t legalize—grant amnesty to—immigrants who, under the law, have no business being here. So whassup with the grant of “lawful presence”? It doesn’t mean anything, says the administration, and so say its shills. The idea that it does mean something is just “metaphysics” cranked up by the plaintiff-states (Ian Millheiser). It’s just a “term of art” that means the opposite of what it seems to be saying (Marty Lederman).
That position perplexed some of the justices. Here is Chief Justice Roberts’ question to Solicitor Donald Verrilli:
I have to ask you about two pages in your reply brief. On page 16, you quote [DAPA] that says, “The individuals covered are lawfully present in the United States.” And less than a page later, you say, “Aliens with deferred action are present in violation of the law.” Now, that must have been a hard sentence to write…
General Verrilli: I actually had no trouble writing it, Mr. Chief Justice.
The SG’s explanation prompted further consternation. Let me make sure I get it, the Chief inquired: “Lawfully present does not mean you’re legally present.” Answer: “Correct.” (That, to my constricted mind, takes more than metaphysics; it takes Hegelian metaphysics.) Also, Justice Alito puzzled, how can you lawfully work in the United States if you’re not lawfully here in the first place? It’s kind of complicated, the SG acknowledged. There’s been a “terrible amount of confusion” prompted by the “lawful [but illegal] presence” phrase. It sounds like the executive is changing people’s legal status; but “it means something different to people in the immigration world.” Glad we cleared that up.
Justice Kagan, who throughout the argument tossed the SG a lifeline, and then a life vest, and then a lifeboat, inquired whether the administration could achieve DAPA’s objectives without the “lawful presence” phrase. General Verrilli’s answer:
Yeah, absolutely. And, in fact, if the Court thinks it’s a problem and wants to put a red pencil through it, it’s totally—it’s totally fine. Really. It doesn’t—I—I understand the—the issues that it’s caused. But its legal significance is a technical legal significance with respect to eligibility for Social Security benefits and for this tolling provision, and that really you know, those—that’s the tail on the dog and the flea on the tail of the dog. (emphasis added)
That’s a damn good answer, from a damn good lawyer who knows how to muddle the issues and to get through the remaining minutes of argument. As a matter of law it’s atrocious, and he knows it.
The “technical” change on eligibility and “this tolling provision” (which has to do with the re-admission of unlawful aliens who have left the country) may be materially inconsequential to the administration. The legal question is something else: you either changed people’s legal position, or you didn’t. And if you did, the fact that it’s “technical” or a “tail” or a “flea” is neither here nor there.
One of the amicus briefs in the case, filed on behalf of Ron Cass and Chris DeMuth, is addressed entirely to this question. It says and explains this: the grant of deferred action and “lawful presence” is what the Administrative Procedure Act calls a “license.” There’s a real question as to whether the statutes at issue permit the administration to grant such licenses. Assuming the existence of such authority, we’re not talking about individual licenses. DAPA is a rule for future proceedings that change people’s legal entitlements, and such rules require notice-and-comment rulemaking. Never happened here: they just crammed it down.
None of the Administrative Procedure Act (APA) is really operative here, the administration insists. We must understand “the unique nature of immigration policy,” the SG explained, in a response to Justice Kennedy’s trenchant question about an “upside-down” world in which the Executive writes the rules and Congress executes. Such executive appeals to “uniqueness” have become commonplace—in litigation over the Affordable Care Act, and climate change, and now immigration.
For my money, any “uniqueness” argument should be rejected out of hand. It has no bounds, and our entire system rebels against it. If the Executive cannot justify its action within the capacious bounds of the Constitution or even the APA, too bad: “people in the immigration world,” or the climate change world, or any other alternate universe will have to live on our planet, in our country and under its Constitution and general laws.
That proposition has four votes against. Maybe it’s just too metaphysical.