American Justice 2016

The Political Supreme Court

Lincoln Caplan

• Publisher: University of Pennsylvania Press
• Year: 2016
• Print ISBN:
  9780812248906
  9780812248906
• eBook ISBN:
  9780812293722
• Topic: Law
• Subtopic: Public Law
• Index: Law

When the Democrat-appointed Justice Ruth Bader Ginsburg criticized Republican presidential nominee Donald Trump, she triggered concerns about judicial ethics. But the political concerns were even more serious. The Supreme Court is supposed to be what Alexander Hamilton called "the least dangerous" branch of government, because it is the least political. Justices have lifetime appointments to ensure their "complete independence" when deciding cases and controversies. But in the Roberts Court's most contested and important rulings, it has divided along partisan lines for the first time in American history: Republican presidents appointed the conservatives, Democrats appointed the liberals. Justice Ginsburg's criticisms suggested that partisan politics drive the Court's most profound disagreements. Well-respected political science supports that view.Has this partisan turn made the Court less independent and less trustworthy than the nation requires? The term ending in 2016 included more decisions and developments in almost fifty years for analyzing this question. Among them were major cases about abortion rights, the death penalty, immigration, and other wedge issues, as well as the death of Justice Antonin G. Scalia, leaving the Court evenly divided between conservatives and liberals. Legal journalist Lincoln Caplan dissects the recent term, puts it in historical context, and recommends ways to strengthen trust in the Supreme Court as the pinnacle of the American constitutional system.

Chapter 1

The Immigration Case

Why did the states that challenged Barack Obama’s 2014 executive order about immigration file their lawsuit in Brownsville, Texas? Why did they choose that small, poor, and outlying city on the American border with Mexico as the place to challenge the president’s authority under a longtime statute to make a big change in national immigration law?

Andrew S. Hanen was then the only active federal district judge in the Brownsville Division of the Southern District of Texas, so it was very likely that he would hear the case. Lawyers for the states clearly wanted that to happen. In the large bloc of states with Republican governors that brought the lawsuit, Texas was the lead plaintiff. Greg Abbott, the Republican who was then attorney general of Texas and who became the state’s governor, led the lawyers for the group.

They had forum-shopped, as lawyers sometimes do, apparently to have the case heard by the federal judge in the United States whom they considered most likely to provide a favorable ruling. They got the judge they wanted. The US Court of Appeals for the Fifth Circuit, which includes Louisiana, Mississippi, and Texas and is headquartered in New Orleans, would hear any appeal in the case. It is the most conservative circuit in the country. For this case, depending on the appeals-court judges assigned to hear any appeal, it was likely to be the most favorable.

At sixty-one, Hanen had been on the federal bench since President George W. Bush appointed him in 2002. For the most part, he had shown himself to be competent and cautious and averse to controversy and risk, sometimes taking months to decide immigration matters that lawyers thought he could have resolved quickly. Occasionally, on the bench, said a lawyer who appeared before him regularly, his face seemed to express the anguish he was inflicting on himself—how uncomfortable he felt about a situation he could have rectified easily yet chose not to.

He also had a major blind spot, the lawyer said. After presiding over many cases involving Mexican drug smugglers, he gave the impression of viewing them as typical: he seemed to regard all Mexican and other Latino immigrants as similarly disreputable. That bias explained best his intemperate criticism of Obama’s immigration policies, which he included in judicial opinions, in language more often used to complain about politics than to reason about law.

In 2013, he presided over a case about the smuggling of a ten-year-old girl from El Salvador to Virginia, which resulted in the conviction of the woman who had transported her. The girl’s mother, in the United States illegally, had paid the transporter six thousand dollars in advance. A Supreme Court ruling and a federal statute reinforcing the ruling’s terms required the government to reunite the girl and her mother, regardless of her immigration status, which it did.

In a judicial opinion about the case, Hanen wrote that, in carrying out this policy, the government had completed “the criminal mission of individuals who are violating the border security of the United States” in “a dangerous course of action.” He wrote that drug “cartels control the entire smuggling process,” so, in completing this operation, the government was colluding with the cartels by “helping fund these evil ventures.” He concluded, “The D.H.S.”—Department of Homeland Security—“should cease telling the citizens of the United States that it is enforcing our border security laws because it clearly is not.”

The US Justice Department did not ask the judge to recuse himself from the 2014 case, so that one of the sixty or so other federal district judges in Texas would handle the case. It rarely seeks recusal of a judge. When it does, the request is considered so weighty that the US attorney general must approve it. In this instance, Hanen’s comments about the government’s collusion with drug cartels in evil ventures and its failure to enforce America’s border security laws likely did not rise to the level of bias that would have required his recusal.

The first criterion was that those comments had to be based on a source of information outside the case. In this instance, they were arguably based on the case’s evidence. The second was that they had to “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible,” as Justice Antonin Scalia defined the standard for recusal in a Supreme Court opinion. Hanen’s comments were frankly disapproving of some government actions, but they arguably did not reach that level of hostility. Still, Hanen’s comments added to the signs that this obviously political case was before a judge likely inclined to agree with the side that brought it.

Texas and eventually twenty-five other red states brought the case called Texas v. the United States. No blue states joined them. It was among the thirty-one lawsuits against the US government that Texas brought while Abbott was the attorney general, as the Texas Tribune reported, “a point of pride for the state’s Republican leaders.” The lawsuit had a political purpose, it was politically constructed, and it became the most political case of the Supreme Court’s 2015 term. It showed how politics attacked, infiltrated, and became the law, to the discredit of the judiciary and the Court.

In the legal complaint, the plaintiffs contended: “This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.” Much of the rest of the complaint contradicted the first sentence while harping on the second. It had the tone of a deeply political document. It was also tactically political: as an example of America’s dangerous immigration policies, the complaint included a mention of the one that supposedly “encouraged international child smuggling across the Texas-Mexico border,” as the 2013 Hanen opinion had asserted.

The case was about a new immigration program called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. Deferred action was shorthand for a decision by the Department of Homeland Security to exercise its discretion in how it enforced the law by deferring the deportation of someone in the United States illegally. Announced in November of 2014, the program went as far as Obama and his Justice Department believed that the president had the discretion to go, under current federal immigration statutes, to change immigration priorities. Obama took this step after conservative Republicans in Congress blocked the House of Representatives from voting on a bipartisan and comprehensive immigration reform bill in 2013, which the Senate had passed by sixty-eight to thirty-two.

Here is how Obama announced the program: “My fellow Americans, tonight, I’d like to talk with you about immigration. For more than 200 years, our tradition of welcoming immigrants from around the world has given us a tremendous advantage over other nations. It’s kept us youthful, dynamic, and entrepreneurial. It has shaped our character as a people with limitless possibilities—people not trapped by our past, but able to remake ourselves as we choose. But today, our immigration system is broken—and everybody knows it.”

Some immigrants played by the rules, he said, while others flouted them. Business owners who offered good wages and benefits faced competition that paid less to undocumented immigrants. But undocumented immigrants who wanted to become responsible Americans could not, so they remained in the shadows. It had been this way for decades, and America had done little about that.

The bill that Obama had worked on with Congress would have doubled the number of border patrol agents while giving undocumented immigrants a pathway to citizenship if they paid a fine, started paying their taxes, and went to the back of the line. The best way to solve this problem would have been to pass that kind of law, but since that had not happened, he had the legal authority as president to take the same kinds of actions that previous Democratic and Republican presidents took to help make the immigration system fairer and more just.

John Boehner, the Republican from Ohio who at the time was Speaker of the House of Representatives and a leader of the opposition, responded to President Obama like this: “The American people want both parties to focus on solving problems together; they don’t support unilateral action from a president who is more interested in partisan politics than working with the people’s elected representatives. That is not how American democracy works.”

Obama had said he was “not a king” and “not the emperor” and that he was “bound by the Constitution,” Boehner went on, but now he was contradicting himself. By ignoring the will of the American people, he had “cemented his legacy of lawlessness and squandered what little credibility he had left.” Republicans were left with the responsibility of upholding their oath of office. “We will not shrink from this duty, because our allegiance lies with the American people,” Boehner said. “We will listen to them, work with our members, and protect the Constitution.”

In a dozen years, as a result of the fear of foreigners triggered by the terrorist attacks in September of 2001 and of polarization in American politics so strong that it became an arena for accusation and acrimony rather than for doing the business of democracy, immigration had been turned upside down. It went from being an area of policy that leaders of both parties insisted must be fixed with wide-ranging, bipartisan reform to the country’s most disruptive and troubling political issue.

Many on the left favored a new law that would provide a path to citizenship for law-abiding and productive immigrants in the United States illegally, but it was a limited segment of the left with a stake in the issue. Some on the right agreed with that goal. Others said the path must be punitive enough to discourage people from coming here illegally. Others still—nativists—opposed immigration reform altogether: basically, they said that immigrants from Mexico and other Hispanic countries were making the United States less American. At its core, the disagreement was about whether the United States should be an open society, with prudent policies to protect it from dangerous would-be immigrants, or whether it should become a closed one.

Under Obama’s proposed program, immigrants could apply to stay in the United States for three years and, in addition, could apply to work legally in the country if they had been in the United States since January of 2010 or before and if they had children who were American citizens or lawful permanent residents. The program was intended to hold undocumented immigrants accountable yet to benefit those who merited the support: it sought to get them to register and pass “criminal and national security background checks” and to pay “their fair share of taxes”; it would let parents who passed those checks stay in the United States for a limited amount of time “without fear of deportation.”

This deferral of deportation was the third of “three critical elements” in the program. The first was “cracking down on illegal immigration at the Mexican border” to increase the likelihood that someone crossing the border illegally would be caught and sent back, and the second was “deporting felons, not families,” by focusing on deporting people who threaten public safety and national security—violent criminals, gang members, suspected terrorists, and people who have recently crossed the border.

The 2014 program was a companion to a 2012 program called Deferred Action for Childhood Arrivals, or DACA. Initially, it applied to immigrants thirty and under who had lived in the United States for at least five years before June of 2012 and had come here before they were sixteen. They had to pass a background check showing that they were in school, had graduated or obtained a certificate of completion from high school, had obtained a general education development certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. They also had to show that they had not been convicted of a felony or other serious crime and did not pose a threat to public safety or national security. In 2014, the president expanded the 2012 program by saying an immigrant had to have lived in the United States since 2010 (rather than 2007), which made arrivals from three additional years eligible, and by extending the deferred action from two years to three so that the 2012 and 2014 programs would be in sync.

The legal authority for the new program, the Justice Department’s Office of Legal Counsel advised, came from the Immigration and Nationality Act of 1952, which governs immigration and naturalization. The statute specified “which aliens may be removed from the United States and the procedures for doing so,” a memo from the Office of Legal Counsel said. “As a general rule, when Congress vests enforcement authority in an executive agency, that agency has the discretion to decide whether a particular violation of the law warrants prosecution or other enforcement action.” In 2012, in a major ruling about immigration, the Supreme Court had recognized that “the broad discretion exercised by immigration officials” is a “principal feature of the removal system.”

This discretion had an obvious limit. As the memo noted, the executive branch “cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” But this limit had not been well defined in any Supreme Court decision. Because it could not be delineated easily, the memo went on, “the exercise of enforcement discretion generally is not subject to judicial review.” Instead, “the political branches have addressed the proper allocation of enforcement authority through the political process.”

On this issue, as on many others in the past two decades, the political process had been almost entirely ineffective. Congress had allocated only enough money for the Obama administration to deport about 400,000 people a year out of the 11.3 million immigrants who were in the country illegally. The administration’s priorities reflected the constraint that Congress imposed—and the administration’s decision to accept what the legal scholar Christina Rodriguez called Congress’s “de facto delegation” of discretion. To the Obama administration, the program of Deferred Action for Parents of Americans, for which it said about 4 million people could qualify, reflected the broad discretion that the law allowed the executive branch in setting enforcement policy. But the size of the program, some senior officials recognized, made this use of discretion look aggressive, even though once they were confident they had the discretion, the program’s size should be irrelevant.

The US government defined deferred action as an “act of administrative convenience to the government which gives some cases lower priority.” For people who qualified, the lower priority would be the sole benefit conferred. It was strikingly flimsy: the government could revoke it the next day without warning, so it conferred no protection from being deported. It was not a pathway to citizenship or to any other substantive rights. It did not provide any degree of amnesty, which only Congress could do. Nor was the program even a typical exertion of executive power, because it did not depend on presidential authority provided by the Constitution. It was a matter of statutory interpretation, about the extent of the president’s discretion in enforcing immigration law.

Obama political adversaries saw it otherwise, as “executive amnesty” that gave “legal status” to illegal immigrants, with their children functioning as “automatic human shields.” That was how the complaint of the states saw it, too, in strikingly similar language. It declared that “the president of the United States announced that he would unilaterally suspend the immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States.” The purpose of the order, “by executive fiat,” was to “legalize the presence of approximately 40 percent of the known undocumented-immigrant population” and create “a de facto entitlement.”

The US government’s immigration policies under the Obama administration, the states went on, “have had and continue to have dire consequences in the Plaintiff States”: “an enormous wave of undocumented immigrants” surging across the border, bringing “enormous law enforcement costs,” with the Texas Department of Public Safety “spending $1.3 million a week on troopers and resources to deal with” the surge.

By exceeding the authority granted to the executive branch in federal statutes that govern immigration, the states continued, the administration had violated “the President’s constitutional duty to ‘take Care that the Laws be faithfully executed’” under the Constitution. As a result, it was already making a bad situation worse. The states asked Hanen to stop the program from going into effect and to declare it unconstitutional. Under the Administrative Procedure Act, which governs how agencies of the executive branch must propose and make rules, they asked the judge to rule that the program was unlawful in how it was made and in its substance.

In response, the US government said that the “Constitution and Congress have vested the Executive Branch, and the Secretary of Homeland Security in particular, with broad discretion over the enforcement of federal immigration law—including determining whether and when to remove (or not remove) particular aliens.” The government, it went on, was enforcing the law—neither flouting it nor suspending it. The government had fulfilled obligations in statutes, followed priorities of Congress, and heeded humanitarian concerns of immigration laws to “emphasize national security, border security, and public safety” while “calling for the case-by-case exercise of deferred action—a long-established form of prosecutorial discretion—for certain low-priority aliens.”

The level of enforcement was hard to quantify. The US government stopped using the term “deportation” in 1996. Since then, people prevented from entering the United States illegally (“excluded”) and people expelled for being in the country illegally (“deported”) were described in a new category—“removal.” There were other categories of exclusion (“expedited removal,” “return,” “reinstatement”) that made it difficult to total the number of people deported e...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Introduction
• 1. The Immigration Case
• 2. A Political Institution
• 3. Law and Politics
• 4. October Term 2015
• 5. The Death Penalty
• 6. Citizens and the Court
• Appendix: Biographies of Current Justices of the Supreme Court
• Acknowledgments