Seila Law reveals the need to find a better legal foundation for the modern administrative state, one that works within the separation of powers.
This past Friday, the U.S. Department of Justice filed its expected petition for certiorari in Texas v. United States, involving several states’ challenge to the administration’s “deferred action” program (“DAPA”). DAPA would grant deferred action—and, along with it, work permits and other benefits—to several million immigrants who are unlawfully present in the United States. The Fifth Circuit Court of Appeals affirmed a preliminary injunction against DAPA on November 9; DoJ’s petition to review that preliminary ruling on an expedited schedule arrived within a fortnight.
Why the haste, my child? Well, on an expedited schedule this case could still be heard and decided this Term, permitting the present administration to implement the program. (Up to a point: it would have to process millions of applications in a few months. For a government that can’t build a website that might be a challenge.)
The petition presents three questions for review:
Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.
Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law. [The phrasing is a bit odd: their actual contention is that DAPA is enforcement action and therefore presumptively unreviewable.]
Whether the Guidance was subject to the APA’s notice-and-comment procedures.
None of these questions are easy; they all arise in areas of the law—standing (especially for states), constitutional and statutory; enforcement discretion versus suspension of law; legislative versus interpretive rules) that are a hopeless mess. I wouldn’t expect the justices to clear any of that up in a case of this magnitude; they’ll just improvise their way through. If indeed they decide to hear the case.
There’s something a bit unseemly about this, don’t you think? Notoriously, the President discovered that he had discretion to implement this program—and ordered up an OLC memo to that effect—only after Congress had said “no.” Even then, the administration could have proceeded through an orderly notice-and-comment proceeding. Instead they crammed this down; and now they say: no one has standing, and it’s unreviewable. That’s constitutional hardball. If you play that game 24/7, the system crashes.
So, too, with the demand for expedited review. The administration’s position hangs on the contention that “deferred action” isn’t a change in the immigrant’s legal status. It’s just immigration jargon for, “we won’t deport you but we can revoke that decision any day.” That may be technically true; it’s not true in substance. No administration of any political coloration could revoke “deferred action” for millions of people. (Okay, the Trump administration could. I meant no sane administration.) That’s the point of hurrying it up.
In similar let’s-hurry-up news, the Commonwealth of Puerto Rico is asking the Supreme Court to review and revise a First Circuit ruling to the effect that a Commonwealth statute providing for a restructuring of the Territory’s public utilities is preempted by federal bankruptcy law. (Cert briefs and First Circuit ruling available here.) The Commonwealth, you see, is an offshore Illinois: it’s hopelessly under water, as are its utilities. If Puerto Rico can’t restructure the debts, say the petitioners, a financial and humanitarian catastrophe looms. (In passages that may have been ghost-written by Senator Warren, the briefs blame hedge fund vultures.) Nonsense, say the vultures’ lawyers: voluntary work-outs are doable, and Congress is actively considering changes that would permit its utilities—though not the Commonwealth itself—to restructure debts under Chapter 9 of the Bankruptcy Code.
I doubt that the justices will want to get into the middle of this. (We may know soon: the case is on tomorrow’s conference list.) The same is likely true of Congress. What will happen, probably: the administration and the Fed will engineer a unilateral solution. They’ll fix it. They fix everything.