A pair of Texas litigators are following Cruz's lead as they gird for a Supreme Court battle this April

By Seung Min Kim
02/11/16 07:10 AM EST

On the campaign trail, Ted Cruz has vowed to rescind President Barack Obama’s controversial executive actions on immigration — but it’s two of his former aides who could actually kill it.

Scott Keller and Chip Roy — who served in top roles in Cruz’s Senate office — are now litigators on behalf of Texas, leading the lawsuit against Obama’s unilateral actions, which are at the cornerstone of the president’s immigration legacy. The duo’s positions also underscore Cruz’s enduring influence and reach at the Texas attorney general’s office, where the Republican presidential candidate served as the state’s top appellate lawyer and built a launching pad for his political career.

Keller and Roy are now preparing for high-stakes oral arguments at the Supreme Court in April, hoping to persuade enough justices to rule that Obama’s 2014 executive actions to grant work permits to more than 4 million immigrants in the United States illegally flies in the face of the separation of powers. A decision is expected in June.

To the two men, Cruz isn’t just a former boss or an old professor who grabbed drinks with them after a tough legal seminar. Nowadays, Cruz is a mentor who instilled key lessons the lawyers keep in mind during heated legal battles.

“One of the most important lessons or things I learned from my time under Sen. Cruz was how to distill down your message,” Keller said in a phone interview with Politico. “When you’re in court, obviously you can get into the technical weeds … but it’s important to remember the high-level messaging.”

Both Keller’s and Roy’s history with Cruz extends to the senator’s time as the state’s solicitor general, the position that Keller now holds. (Roy is the state’s first assistant attorney general, making him Texas Attorney General Ken Paxton’s top deputy.) Roy, who was chief of staff in Cruz’s Senate office, first met the future senator during a strategy session to discuss League of United Latin American Citizens v. Perry, a 2006 redistricting case that Cruz argued before the Supreme Court.

And Keller was one of Cruz’s students when he was an adjunct professor at the University of Texas Law School. The future senator taught a Supreme Court litigation seminar, regaling students with tales from legal fights and joining them for the occasional margarita after class.

“He was fascinating,” Keller recalled. “He had so many war stories from his time of litigating all the various cases that he had. One thing that always stuck out to me, though, was he would stay after class as long as students had questions about war stories or how to improve as appellate advocates.”

Roy and Keller came to Cruz’s office with lengthy legal and political histories. Roy, 45, was a top adviser to former Texas Gov. Rick Perry and served as a senior aide to Sen. John Cornyn (R-Texas), working as a key adviser during the immigration reform battles under the George W. Bush administration.

And Keller, 34, clerked for Supreme Court Justice Anthony Kennedy and 9th Circuit Judge Alex Kozinski and worked at the U.S. solicitor general’s office and in the private sector before joining Cruz’s team.

“So far, I give [Roy and Keller] nothing but praise for the state’s handling of the case,” said Cornyn, who as Texas attorney general created the position of solicitor general.

Roy transitioned out of the Senate office in September 2014 to become a senior political adviser laying the groundwork for Cruz’s eventual 2016 bid. But both men returned to Texas to serve under Paxton, who was sworn in as the state’s attorney general a year ago.

For Roy, it was a deeply personal decision — his Hodgkin’s lymphoma diagnosis made him realize he wanted to be closer to his family in Texas, instead of commuting weekly to Washington or traveling extensively on a presidential campaign. With the legal troubles surrounding Paxton, who has been indicted on securities fraud charges, Roy’s name has been floated as a potential replacement.

“He encouraged” the career moves, Roy said of Cruz, with whom he still keeps in touch as the senator campaigns for the GOP nomination. “He wanted those of us who were committed to Texas and defending Texas to be in a role to influence and shape the debate.”

Keller, in particular, is in a remarkable position. He is on track to argue five cases before the Supreme Court on behalf of Texas in just a year and a half. Cruz went before the Supreme Court eight times in five years as solicitor general.

In addition to the immigration case, Keller will defend a controversial Texas law imposing certain requirements on abortion clinics. Oral arguments in that case are expected in March.

“He’s a very fine attorney. It’s clear he knows his way around an appellate courtroom,” said David Leopold, a past president of the American Immigration Lawyers Association who has closely followed the oral arguments in the immigration case.

But lawyers who support the immigration programs, including Leopold, argue that Keller’s chief contention — that Obama’s executive actions directly grant “lawful presence,” and along with that, a host of benefits including work permits — is inaccurate. Instead, the executive actions merely put potentially 4 million undocumented immigrants in a special category of people who can then apply for work permits.

“Never in this oral argument does Scott Keller really describe what’s in the Nov. 20 memorandum,” Leopold said, referring to the document that established the immigration programs. “If you read the whole sentence here, [Homeland Security Secretary] Jeh Johnson goes on to great lengths to explain that this creates no right, it’s on a case-by-case basis, that it can be terminated anytime.”

The Obama administration has steadfastly vowed that the president’s actions in November 2014 — which would affect millions of undocumented parents with children who are U.S. citizens or green card holders — are well within Obama’s executive reach. Fifteen states and the District of Columbia, as well as nearly all Democrats on Capitol Hill, have signed on to briefs endorsing Obama’s immigration orders.

But although the language establishing the executive actions say immigrants would be accepted solely on a case-by-case basis, lawyers for the state of Texas say that, in practice, the actions grant work permits to a new class of people — a move they argue is exclusively in Congress’ domain.

And in their oral arguments and interviews, Keller and Roy are making the case that the Texas lawsuit isn’t merely about immigration. The lawsuit, spearheaded by Texas on behalf of 26 states, has sweeping implications beyond immigration, Keller and Roy say.

“With all due respect to former colleagues in the Senate and House, when the U.S. Senate and House aren’t doing their job in standing up for and defending Article 1 [which established the legislative branch of the federal government], I think it is critical what Texas is doing in stepping up and defending when the president himself said repeatedly he didn’t have the power to do this,” Roy said.

Amanda Carpenter, Cruz’s former communications director, called Roy a “committed conservative” and family man who helped keep the staffers grounded while working for a high-profile, demanding office. And she described Keller as an “absolute dream” for his ability to translate complex legalese to a simple political message.

“They just were both a joy to work with,” said Carpenter, who is now a political commentator. “It was never a question of what should we pick or turn down? It was, how much can we take on? You see that too in the amount of work from the Texas vantage point now.”

As for whether either harbors political ambitions like their former boss, Keller and Roy give few clues. Keller, whose professional history is primarily in law, says that for now, he’s focused on his current job.

Meanwhile, Roy, who has a deeper political background than Keller, is keeping that option open.

“Before Hodgkin’s lymphoma, I was headed down that path. Subsequent to having cancer, I kind of took a step back,” said Roy, who has been in remission for four years. “I’ll leave that in the Lord’s hands. I love public policy and trying to impact public policy.”