Feds and states in immigration fight split on SCOTUS ruling

By JOSH GERSTEIN
7/6/15 11:35 AM EDT

Just as in virtually every other aspect of their dispute over federal immigration policy, the Obama Administration and 26 states are sharply at odds over the impact of a ruling the Supreme Court issued last week on the final decision day of the court's term.

The bottom line in that 5-4 ruling dealt with a topic entirely unrelated to immigration: whether voters in individual states can make an end-run around their state legislatures by setting up a commission to handle redistricting. The court held that practice constitutional, but in getting to that decision also ruled that Arizona's state legislature had legal standing to pursue the legal challenge, even though it didn't ultimately prevail.

Now, both sides in the legal fight over President Barack Obama's executive actions on immigration claim their case is bolstered by the justices' decision in the Arizona redistricting decision.

In a special brief requested by a federal appeals court within hours of the Supreme Court's ruling, the Justice Department argued that the Arizona case undercuts the claims Texas and 25 other state have put forward for why they have standing to sue the federal government over Obama's decisions to grant quasi-legal status and work permits to millions of immigrants who entered the U.S. illegally. Administration lawyers say the president's moves don't constitute a swipe at states' powers.

"The features of the legislature’s claim that led the Court to find standing in [Arizona Independent Redistricting Commission] are entirely absent from this case. Indeed, the differences between the claim of injury in AIRC and the claimed injuries here underscore the weakness of the plaintiff States’ assertions of standing in this case," Justice Department attorneys wrote in their brief filed just before the July 4th holiday weekend (and posted here).

"The ballot initiative directly regulated the Arizona legislature in a manner that deprived it of one of its asserted core legislative prerogatives—a prerogative that was claimed to be grounded in the U.S. Constitution itself. In stark contrast, the 2014 Deferred Action Guidance does not regulate States at all, nor does it divest any branch of a State’s government of any legal authority or invade any 'legally protected interest' of a State," the feds added.

A district court judge who blocked Obama's latest round of executive actions in February found that the states had legal standing because Texas and others would incur additional costs, including the costs of issuing drivers' licenses, as a result of more illegal immigrants being granted "deferred action" status. But the Justice Department says the states have many ways of cutting their losses on that front.

"Far from 'completely nullif[ying]' a state prerogative, the [administration's] Guidance does not prohibit Texas from increasing the $24 fee it charges for temporary visitor driver’s licenses...or from modifying its driver’s licensing regime in some other way to avoid the costs attributable to its voluntary decision to tie its state-law subsidy to federal law," the Justice Department lawyers wrote.

The Obama Administration's attorneys also suggest that Texas's claims of financial losses on drivers licenses are chimerical. "Under the States’ heads-I-win-tails-you-lose theory of standing, Texas would have standing to sue the federal government whether DHS accords deferred action to an alien or institutes removal proceedings against the very same alien," the federal government's lawyers argue.

Texas and the other states insist that because of the practical impacts of the deferred action program they have an even better case for legal standing than the Arizona legislature did.

"Arizona State Legislature’s reasoning supports Plaintiffs’ standing, but nothing in it is necessary for Plaintiffs to demonstrate standing. Plaintiffs demonstrated their strong likelihood of success in showing standing based on direct financial injuries regarding one or more of their driver’s-license programs," said a brief filed by Texas Solicitor General Scott Keller (and posted here). "Plaintiffs have standing under principles that would apply to any non-governmental plaintiff. Plaintiffs’ ample evidentiary submission on the motion for a preliminary injunction demonstrated a strong likelihood of success in showing concrete financial injuries traceable to DAPA and redressable by the relief they seek."

Both sides also noted that Justices Antonin Scalia and Clarence Thomas dissented from the Arizona redistricting ruling and said the courts shouldn't resolve "[d]isputes between governmental branches or departments regarding the allocation of political power." However, Texas pointed out that the Scalia-written dissent dealt with the issue of fights within a government, not those between a state and the federal government and not ones where states are asserting that a specific law has been broken.

The 5th Circuit U.S. Court of Appeals is scheduled to hear arguments Friday about the district court's ruling blocking Obama's immigration moves. It's unclear what influence the Supreme Court redistricting ruling will ultimately have in the immigration case, but based on the makeup of the three-judge panel hearing the case, the Obama Administration still looks like it has little chance of prevailing at the appeals court: the 5th Circuit announced last week that two of the three judges who denied a temporary stay to the administration in May will also be hearing the substance of the dispute on Friday.

While a total of 26 states are on Texas's side of the legal battle, 14 other states have aligned with the Obama Administration to support its immigration moves.

http://www.politico.com/blogs/under-...us-210005.html