United States v. Texas

Here at the Prince Law Blog, we have been committed to providing continued coverage of what is quickly proving to be among the most definitive cases of the SCOTUS’s current calendar year – United States v. Texas.

The last we blogged, the United States had promptly appealed the split decision of the 5th Circuit Court of Appeals, which itself had upheld a U.S. district court injunction against the President’s executive action known as DAPA (Deferred Action for Parents and Lawful Permanent Residents).

SCOTUS granted certiorari, and oral arguments were heard yesterday…and the world waits with baited breath.

One thing is certain, the current post-Scalia dynamic of the Court will have an exceptionally large bearing on the result.  According to creditable accounts of yesterday’s arguments, there were many pointed exchanges between counsel and Justices all seeming to portend a stark split among the justices (the 4 liberal-moderates on one side; the 3 conservatives on the other).  Therefore, most of the pundits are especially fascinated with the line of questioning from the potential swing voter(s), Roberts and Kennedy.  Also, it should be noted that a 4-4 split decision would NOT result in a precedent, meaning the decision of the 5th Circuit would remain in place.

To briefly recap, the questions before the Court are as follows:

  • Do the (26 plaintiff) States have standing to challenge the Administration’s exercise of deferred action/prosecutorial discretion? More specifically, does the state-borne cost associated with providing drivers’ licenses to beneficiaries of deferred action qualify as an injury or harm under normative jurisprudential standards?


  • Does the DAPA program go beyond the powers conferred to the Executive by Congress? In other words, is DAPA merely an extension of the President’s right to enforce immigration law or is it indicative of the President purporting to create new law (therefore invading the Congressional province)? Relatedly, has the President violated the Take Care clause of the Constitution by abdicating his duty to “faithfully” carry out immigration law.


  • Must DAPA be considered void for not technically following the Notice and Comment requirements of the APA?


As this blogger sees it, the most unfortunate aspect of this case, as I mentioned previously, is that the outcome might yet be influenced (if not hijacked outright) by sheer bloody-minded politics.  Instead of a reasoned, purely legal and/or textual assessment of a) the powers of the Executive branch in the context of setting immigration policy; b) whether an administration’s immigration policy can even be challenged in court; c) the lengthy history of the Executive branch’s use of prosecutorial discretion and deferred action programs and other non-extraneous factors, the furor here seems more to be about conservative outrage that the current Administration has made a decision that they do not agree with in principle.

It is a pity that, when it’s all said and done, no points might be given to the Administration for taking initiative in tackling, as best it knows how, arguably the biggest socioeconomic and humanitarian issue in the United States today.  Is it realistic or even decent governance to expect the more than 4 million persons present without legal status can be expected to continue to live in the shadows perpetually?  Do we really imagine that we can simply deport all these people without enormous cost, both financial and social?   In this bloggers humble opinion, this case is about politics making an issue out of pragmatism, and attempting to coopt the law in that effort.  Where Congress has failed to act, the President apparently has.  Now leadership is branded as lawlessness.  Go figure.

The folks at Scotus Blog, typically thorough fashion, have done a wonderful job putting together a United States v. Texas “symposium” – a series of discussions having a diversity of learned viewpoints on the case.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s