Immigration and Citizenship

Will John Roberts Side With Obama On Immigration?

Some legal experts say his conservative views about access to the courts could tilt the Supreme Court’s immigration case in Obama’s favor.

By Sam Baker

The Obama ad­min­is­tra­tion and its al­lies are angling for an­oth­er elec­tion-year re­prieve from Su­preme Court Chief Justice John Roberts—this time, on im­mig­ra­tion.

The high court will hear or­al ar­gu­ments next week in a chal­lenge to Pres­id­ent Obama’s ex­ec­ut­ive ac­tions on im­mig­ra­tion, and some lib­er­al leg­al ex­perts be­lieve that the ad­min­is­tra­tion has a good shot at win­ning Roberts’s vote.

Roberts’s sup­port is hardly a giv­en, and an elec­tion-year de­cision in fa­vor of Obama’s im­mig­ra­tion or­ders—a rul­ing that would come al­most ex­actly four years after Roberts cast the de­cid­ing vote to save Obama­care—would surely en­rage con­ser­vat­ives.

But the Justice De­part­ment has fo­cused in­tensely on ar­gu­ments that seem right up his al­ley, ar­guing that the 26 states chal­len­ging Obama’s im­mig­ra­tion ac­tions do not have the leg­al stand­ing to bring the case—and that al­low­ing it to pro­ceed would thrust the courts in­to an end­less mor­ass of ticky-tack polit­ic­al dis­putes between states and the fed­er­al gov­ern­ment.

The states, though, have laid out their own road for Roberts, of­fer­ing up an easy way for the chief justice to rule against the White House on nar­row grounds that would block Obama’s ac­tions from tak­ing ef­fect but would not ne­ces­sar­ily stop the next pres­id­ent from at­tempt­ing something sim­il­ar—even if that pres­id­ent is a Demo­crat.

With only eight justices on the Court, the White House would only need to pull away the vote of one Re­pub­lic­an ap­pointee—most likely, Roberts or Justice An­thony Kennedy—to win the case.

“I think they’re both really in play for the ad­min­is­tra­tion,” said Bri­anne Gorod, chief coun­sel at the lib­er­al Con­sti­tu­tion­al Ac­count­ab­il­ity Cen­ter. “I think the chief in par­tic­u­lar be­cause his views on stand­ing, and his views that stand­ing should be in­cred­ibly lim­ited, have been so strongly stated and so con­sist­ently stated.”

Big cases of­ten come with a de­bate over one party’s stand­ing, but that dis­pute is es­pe­cially poin­ted in the im­mig­ra­tion case. The Justice De­part­ment has de­voted at least half the space in its writ­ten briefs to an ag­gress­ive ar­gu­ment that the states can­not chal­lenge fed­er­al im­mig­ra­tion policy in court.

“Al­low­ing claims like those re­spond­ents press here to pro­ceed would upend the con­sti­tu­tion­al design by en­mesh­ing the courts in all man­ner of dis­putes between the fed­er­al gov­ern­ment and a State, or com­pet­ing fac­tions of States, over im­mig­ra­tion policy,” the Justice De­part­ment wrote.

Some leg­al ex­perts say that ar­gu­ment might be more likely to ap­peal to Roberts than to Kennedy.

Broadly, Kennedy has a repu­ta­tion for em­bra­cing the op­por­tun­ity to de­cide big leg­al ques­tions, while Roberts fre­quently tries to avoid them. And Roberts is of­ten wary of open­ing the courtroom doors fur­ther than he thinks is ne­ces­sary.

To es­tab­lish stand­ing, the states must es­tab­lish that they would suf­fer an “in­jury” from Obama’s im­mig­ra­tion policies. That in­jury, they say, comes in the form of a fin­an­cial bur­den that they would face if mil­lions of un­doc­u­mented im­mig­rants are al­lowed to leg­ally re­main in their states. Texas pays par­tic­u­lar at­ten­tion to the costs it would bear from is­su­ing driver’s li­censes to those work­ers, be­cause the state sub­sid­izes the cost of a li­cense for many im­mig­rants.

But if states can chal­lenge every change in fed­er­al policy that has a ripple ef­fect on their budgets, the courts will end up ad­ju­dic­at­ing state-fed­er­al dis­putes over everything from im­mig­ra­tion policy to the fed­er­al for­mula for cal­cu­lat­ing poverty. And that would thrust the courts in­to a polit­ic­al role that Roberts might prefer to avoid.

Ilya Sha­piro, a Cato In­sti­tute leg­al ex­pert who worked on a brief op­pos­ing the ad­min­is­tra­tion’s im­mig­ra­tion ac­tions, agreed that ques­tions about stand­ing could swing the case in the gov­ern­ment’s fa­vor.

“It’s prob­ably the easi­est way to avoid a 4-4,” he said.

If the briefs in the case are any guide, the justices will likely spend a lot of time dur­ing next week’s ar­gu­ments on stand­ing be­fore turn­ing to a pair of ques­tions about the mer­its of Obama’s ac­tions: wheth­er they vi­ol­ated the pres­id­ent’s con­sti­tu­tion­al duty to “take care that the laws be faith­fully ex­ecuted”; and wheth­er the ad­min­is­tra­tion vi­ol­ated the Ad­min­is­trat­ive Pro­ced­ure Act by is­su­ing the new policies without a no­tice-and-com­ment peri­od.

Leg­al ex­perts on both sides of the is­sue be­lieve that the APA is a much more likely vehicle to rule against the ad­min­is­tra­tion. The Court has hardly ever ruled on the mean­ing of the “take care” clause, and hardly any­one ex­pects it to wade in­to a new con­sti­tu­tion­al ques­tion with a case that’s this polit­ic­ally sens­it­ive.

Roberts of­ten de­liv­ers nar­row rul­ings that, at least tech­nic­ally, leave the polit­ic­al branches’ op­tions open. And rul­ing that Obama should have used no­tice-and-com­ment rule­mak­ing for the im­mig­ra­tion rules would be one way to do that. It might even al­low a Demo­crat­ic suc­cessor to pur­sue a sim­il­ar im­mig­ra­tion policy—al­beit through a more time-con­sum­ing pro­cess.

“That, I could see as a Roberts opin­ion,” Sha­piro said.

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