New York Times

Chief Justice Under Scrutiny Again as Court Hears Immigration Case

April 18, 2016

by Adam Liptak

WASHINGTON — Chief Justice John G. Roberts Jr. twice voted to save President Obama’s health care law, infuriating his usual allies on the right. Now, conservatives are nervous that the chief justice will disappoint them again in a challenge to another major Obama initiative, this one on immigration.

The case, to be argued on Monday at the Supreme Court, presents fundamental questions about executive power against the backdrop of a wrenching national debate over Mr. Obama’s plan to spare millions of immigrants from deportation. But Chief Justice Roberts’s record suggests that he may avoid taking a position on such a divisive and partisan issue, focusing instead on the more technical question of whether the states challenging the Obama administration’s immigration plan have suffered the sort of direct and concrete injury that gives them standing to sue.

That jurisprudential off-ramp would avoid a deadlock or a grand pronouncement from a short-handed court on a politically charged issue in a presidential election year. And that may prove attractive to a chief justice who has said he does not want the Supreme Court to be viewed as a forum where “partisan matters would be worked out.”

A narrow ruling would in some ways echo Chief Justice Roberts’s 2012 opinion sustaining the central feature of the health care law on grounds so carefully calibrated that no other justice joined all of his opinion. And it would be consistent with his stated preference for achieving consensus by defining the legal question at issue in a case as narrowly as possible.

Chief Justice Roberts, 61, is a patient man and a canny strategist, sometimes to the frustration of his conservative colleagues. In 2007, three years before the Citizens United decision, Justice Antonin Scalia, who died in February, urged him to move faster in deregulating campaign finance law.

In 2009, Chief Justice Roberts persuaded seven of his colleagues toduck a challenge to the Voting Rights Act on technical grounds and then used language from that opinion in 2013 to justify striking down the heart of the law in Shelby County v. Holder.

David A. Strauss, a law professor at the University of Chicago, said an incremental step will appeal to Chief Justice Roberts all the more in the current political climate.

“The chief justice, who has spoken recently about how the confirmation process might affect the court’s stature, may be especially troubled by a 4-4 split in this case,” Professor Strauss said. A ruling based on standing, he said, “would wipe the slate clean, so the program could be considered in the future by a full Supreme Court.”

Mr. Obama’s plan would allow more than four million unauthorized immigrants who are parents of citizens or lawful permanent residents to apply for a program shielding them from deportation and allowing them to work legally. In the short term, a ruling to dismiss the case on standing grounds would at least temporarily save the plan.

A tie vote, on the other hand, would leave in place an injunction blocking the plan and probably deny Mr. Obama any chance of resurrecting it.

The case, United States v. Texas, No. 15-674, was brought by Texas and 25 other states, which say the plan went beyond what Congress had authorized. Lower courts have sided with Texas.

The trial judge ruled that the Obama administration should have given notice of the plan and sought public comments on its new program. The appeals court affirmed that ruling and added a broader one: The program, it said, also exceeded Mr. Obama’s statutory authority.

The Supreme Court asked the parties to address the even broader question of whether Mr. Obama had violated his constitutional obligations to enforce the nation’s laws. But the court must first address whether Texas has suffered the sort of direct and concrete injury that gave it standing to sue in the first place.

“Chief Justice Roberts will be very skeptical of Texas’s standing claims,” said Tara Leigh Grove, a professor of law at William & Mary and the author of an article on lawsuits by states against the federal governmentto be published next month in The Cornell Law Review.

Ken Paxton, the attorney general of Texas, said his state had brought the case to settle fundamental questions about presidential power.

“Our goal really was pretty basic: defend the Constitution and stop President Obama’s lawlessness,” he said.

A White House spokeswoman declined to comment. In court papers, the administration has defended its plan as lawful, humane and valuable.

A ruling based on standing would sidestep all of those issues. Even lawyers who believe that Texas has demonstrated that it has standing say they are not sure how the chief justice will vote.

“It’s no secret that the chief justice is not a fan of expansive standing doctrine,” said Jonathan H. Adler, a law professor at Case Western Reserve University who filed a brief supporting Texas on the standing issue.

Professor Adler, who was an architect of a challenge to the Affordable Care Act’s nationwide tax subsidies that the Supreme Court rejected last year in a majority opinion from Chief Justice Roberts, added that there was a second reason to worry about the chief justice’s vote in the Texas case.

“Ways of disposing of cases without addressing the merits do become more attractive on an eight-member court,” he said.

Texas says it has standing to sue based on the budget shortfalls it would sustain if many unauthorized immigrants applied for driver’s licenses. The state sets fees for driver’s licenses below what they cost and ties eligibility for them to federal determinations about who is lawfully present in the country.

“Our standing argument is based on the cost of driver’s licenses, which is obviously not part of our budget at this point,” said Mr. Paxton. “The Legislature meets only every other year, and they put together a budget and all of the driver’s licenses come out of the budget, and there’s no money for it. So our standing is based on that cost.”

Experts on standing law have sharply differing views about whether the cost of driver’s licenses, a consequence of the state’s own choices about fees and eligibility, can confer standing. “Such self-imposed ‘injury’ has never provided a ticket to federal court,” Walter Dellinger, a former acting United States solicitor general in the Clinton administration, wrote in a supporting brief. Chief Justice Roberts cited Mr. Dellinger’s views on standing in an opinion in an earlier case.

Ernest A. Young, a law professor at Duke who filed a supporting brieffor Texas, said the state has plainly been injured. “All one has to accept for Texas to have standing,” he said, “is that governments have interests in administering their own legal regimes, and that because these legal regimes are intertwined with federal law in various ways, federal actions often do affect state public administration in a cognizable way.”

Chief Justice Roberts wrote a sharp dissent in Massachusetts v. Environmental Protection Agency, a 5-to-4 decision in 2007 that said Massachusetts had standing to challenge the Bush administration’s decision not to regulate greenhouse-gas emissions. Relaxing standing requirements “because asserted injuries are pressed by a state,” the chief justice wrote, “has no basis in our jurisprudence.”

The “true goal for this litigation may be more symbolic than anything else,” he wrote. “The constitutional role of the courts, however, is to decide concrete cases — not to serve as a convenient forum for policy debates.”

Standing is a neutral legal principle that applies to the right and left alike, he wrote in an influential 1993 law review article.

“It restricts the right of conservative public interest groups to challenge liberal agency action or inaction,” he wrote, “just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction.”

Mr. Dellinger said a rigorous approach to standing was consistent with Chief Justice Roberts’s statement at his confirmation hearings that judges should aspire to be umpires, whose only job is to call balls and strikes.

“Before any judge begins calling balls and strikes,” Mr. Dellinger said, “he must first make sure the batter at the plate is an actual player and not just a fan who ran on the field.”