Texas and 25 other states rushed into court to try to block the new programs; in February 2015, a federal district court stayed them. In November, a divided three-judge panel of the Fifth Circuit agreed. Neither court, however, said the administration had violated the Constitution. The district court said that the Department of Homeland Security had violated statutory procedure. Under the Administrative Procedure Act, the court reasoned, DHS could not issue such a regulation without first engaging in a public process called “notice and comment.”
The Fifth Circuit majority raised the ante: The majority concluded that, regardless of procedure, the program announced in the “guidance” was “manifestly contrary” to the Immigration and Nationality Act, but did not reach the constitutional question.
The administration asked the Supreme Court to grant “immediate review,” and this week it did. The administration’s petition had asked the Court to resolve three questions. First, did the states even have “standing to sue” the federal government over the issue? Second, was the “deferred action” policy “not in accordance with law” (as the Fifth Circuit had held)? And, third, was “notice and comment” rulemaking required to put the policy into effect?
The Court’s order Tuesday added a fourth question: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” That change attracted some raised eyebrows. Yesterday, Cornell professor Stephen Yale-Loehr told The New York Times that “the court’s decision could redefine the balance of power between Congress and the president.”
Veteran court watchers point out that there may be housekeeping reasons for the added question. Texas had argued below that the president was, in effect, not interpreting the law but setting it aside, thus violating his constitutional duty to “take care that the laws be faithfully executed.” Neither court reached that issue; their decisions rested on the program’s supposed procedural flaws and incompatibility with statute.
Imagine now that the administration wins on those two issues, but that the Court finds the states do have “standing.” The case would then be remanded to the same Fifth Circuit panel, and from them to Judge Andrew Hanen of the District of South Texas. Hanen, who sits in the border town of Brownsville, was an outspoken critic of the administration’s immigration policy before the case—and indeed, the plaintiffs probably filed suit in his district for precisely that reason. Judge Jerry Smith, the author of the Fifth Circuit opinion, is also an open critic of the president; in 2012 he threw an unseemly tantrum on the bench, demanding that Eric Holder write him a letter explaining comments by Obama on the lawsuit challenging the Affordable Care Act.
Thus, a remand might simply offer these judges another bite at the apple. As Brianne Gorod of the Constitutional Accountability Center put it, “If the Court didn’t add the question and simply reversed the Fifth Circuit on the APA issue, the district court judge could have then enjoined it again on constitutional grounds, and the Supreme Court would have needed to weigh in yet again.”