A Ninth Circuit immigration decision bears crucially on the Supreme Court’s pending decision in Texas v. United States, better known as “the DAPA case.” The appellate court’s April 5 decision shines a harsh spotlight on the administration’s legal defense of its immigration policies.
It’s okay for the White House, I suppose, to say one day that the President needs congressional authority to accommodate “Dreamers” and their parents and to say the next day, “no he doesn’t—not when Congress is being ornery” and “we can’t wait.” Why the current occupants of the OLC and the SG’s office would sacrifice their offices’ once-proud reputation in memos and briefs defending this extra-constitutional maneuvering is a different and sordid story for another day. Today’s topic is how they provide legal cover—by saying whatever it takes. It’s far into the weeds. But then, the prize always goes to the guy, gal, or transgender who manages to stay awake. The bad people are betting on it.
In 2012 the administration enacted DACA—the “Dream Act” for children of unlawful immigrants, which Congress had conspicuously failed to enact—by means of an administrative “guidance.” (DACA preceded DAPA, the 2014 program for parents at issue in the Supreme Court case. For present purposes the distinction is immaterial, and the government and its shills do not say otherwise.) Under DACA, beneficiaries qualify for a federal Employment Authorization Document (“EAD”). So Arizona passes a statute that says in substance: for purposes of obtaining a driver’s license, we’ll accept an EAD from any immigrant who has lawful status under U.S. law. But not from DACA folks because, as the government itself insists, that program doesn’t confer any legal status; it’s just a policy memo. (The feds do so insist: their entire defense on DAPA and DACA hangs on the point.) That being so, Arizona says, we’re free to administer our no-DACA driver’s license policy.
The Ninth Circuit’s oral argument turned into a judicial harangue over Arizona’s “racism.” (You have to hear it to believe it.) And the panel’s opinion reads like the HuffPost on acid. It starts on an extended disquisition on why Arizona’s policy might not even satisfy minimal standards of rationality under the Equal Protection Clause, followed by a “we need not decide that” sentence. (Then why are you droning on about it?) The final portion of the opinion correctly dismisses Arizona’s constitutional challenge to DACA (the program violates the Take Care Clause) as belated—and then avers that the program is, like, totally constitutional. If that question were before the court, which (the opinion says) it is not.
Wedged between these diatribes is the actual holding: Arizona’s policy is preempted by federal law. Okay: not law, exactly, because the government insists that DACA isn’t law; but by what the present occupants of the federal bureaucracy want. The opinion regurgitates the feds’ brief, which says this:
Arizona also suggests that its policy is not preempted because DHS’s DACA memorandum lacks “the force of law.” While it is true that DACA is a general statement of policy and thus lacks the “force of law,” [why the scare quote, Kemosabe?] Arizona’s suggestion reflects a misunderstanding of the preemption question here … The State’s policy is preempted not because it conflicts with the enforcement policy outlined in the DACA memorandum, but rather because the federal government has the exclusive power to establish alien classifications, and the State’s policy intrudes on that federal prerogative by distinguishing among groups of aliens in novel ways and without substantial justification.
Behold this thing of beauty: unadulterated b-s in artful legal parlance. Arizona’s policy does not remotely question the federal government’s exclusive authority to establish alien classifications; it borrows and precisely tracks the federal statutes and regulations. Arizona simply contends that the federal government’s authority must be exercised by law—which, the government insists, it has not done in creating DACA and DAPA. The federal government’s asserted “prerogative” here is preemption by press release and ipse dixit. That’s not the Constitution, last I looked; but it’s the law of the Ninth Circuit.
On to the DAPA case: Texas says that it has standing to bring that case because DAPA would compel it to issue hundreds of thousands of driver’s licenses to DAPA beneficiaries, at great cost. The feds say: that’s not an “injury” that confers standing because it’s self-inflicted, and Texas can always change its policy.
Acutely aware of (shall we say) the tension between its positions, the feds address it in footnotes in their briefs. (Memo to aspiring lawyers: that’s a dumb thing to do. Everyone knows that that’s where the garbage hides.) In the Arizona case, the government says that its position (“Preempted!”) “fully comports with its position in Texas v. United States” because Texas can change its policy “as long as it borrows federal alien classifications and has an adequate state interest in the distinction.” Whaddya mean—classifications established by law, or by say-so? And in its Supreme Court reply brief in Texas v. United States, footnote 1 distinguishes the then-hot-off-the-press Ninth Circuit decision on the grounds that “Arizona did not invoke cost to justify its choice.” No. It invoked six other justifications, all of which the panel dismissed as pretextual and borderline racist. And a “cost” argument that the feds themselves characterize as made-up would have changed the outcome? Please.
You can call this clever lawyering. But that’s not how it goes over with justices who pay attention. “You say, Governor Verrilli,” (I paraphrase the questioning by Chief Justice Roberts and Justice Alito—pages 5-14 of the transcript) “that Texas could change its driver’s license policy. So, no standing. But then you or someone would sue them, right? And you’d say, it’s preempted, right? You really have to tell us whether what you propose Texas could do would be legal.” Answer, in substance: “We might sue them, or not. And I don’t have to tell you anything—I’ll just bob and weave until you throw in the towel.”
This isn’t just an immigration thing. In an increasing number of cases and arguments, the justices have been unable to get a straight answer from the SG’s office. In a way that’s not surprising: any halfway competent lawyer knows how to deflect questions for ten minutes. The check on lawyerly evasion is, or used to be, the SG’s repeat-player role: you dissemble in one case, it bites you in the next. But that doesn’t matter, does it, when you have the votes no matter what? And when you’re willing to dissipate not just your own credibility but also that of your office?
What a wicked game they play.