Here's part of what’s on the line during Monday's Supreme Court arguments on the constitutionality of President Obama's immigration orders: the reputation of Chief Justice John Roberts. And while that may not interest progressives much, depending on whether he hews to the ideals of judicial restraint that he prizes, he can either help maintain consistency in immigration policy nationwide or throw the system into complete chaos.
The case, U.S. v. Texas, stems from a constitutional challenge led by 26 Republican governors and attorneys general who hope to permanently block deportation relief for up to 5 million undocumented immigrants. But rather than reviewing the legal arguments involved, let's examine what the upshot could be.
First, it's beyond clear that this was a politically motivated case mounted by an all-GOP cohort who filed in a Texas court with a federal judge who is notoriously anti-immigrant, Andrew Hanen. As long-time Supreme Court reporter Linda Greenhouse noted in a New York Times op-ed:
This is a case that should have been tossed out of Federal District Court in the first instance.
Why? Because it's incredibly specious that these states even have the standing to claim Obama's executive action is somehow injuring them. In fact, Greenhouse calls it "preposterous." Texas, for instance, asserts that it would lose "several million dollars" if it had to issue drivers' licenses to 500,000 undocumented residents that it would only charge $25 a pop for. Wow, that few million must be a serious blow to a state with an annual budget of $112.6 billion in 2015. Apparently, Texas lawmakers haven’t considered simply upping the fee to cover their costs.
So the first hurdle for Chief Justice Roberts and his colleagues is deciding whether a politically motivated case with a flimsy claim will be thrown out for lack of standing, as it should have been in the lower court. If they do grant standing, not only will it diminish the high court's "supremeness," it will also open the floodgates to chaos, as immigration attorney David Leopold writes. This assumes a 4-4 split decision—where Roberts aligns with the court's conservative justices—which would send the case back to the 5th Circuit and leave in a place a nationwide injunction imposed by Judge Hanen on the programs.
A 4–4 split on the Supreme Court would: provide a green light to Republican-controlled states — not the federal government — to determine the nation’s immigration enforcement policy — contradicting the Court’s major precedent in the process; open the door to a myriad of politically-charged lawsuits that states would be newly empowered to bring against sitting presidents; and raise questions about whether the injunction placed on the deportation deferral guidance, known as DAPA and DACA+, should continue to apply across country, ultimately leading to a patchwork of confusing immigration enforcement regimes in different states and regions of the U.S.
All of Leopold's points are worthy of exploration, but let's focus on the last one because it promises to have the most immediate impact. The injunction that was placed on the programs—DACA and DAPA—would continue in the 5th Circuit, where states like California and Washington that oppose the lawsuit would likely seek to have the injunction lifted. Additionally, other states in different circuits around the country would challenge Hanen’s injunction, leading to a patchwork of places where the programs applied and didn't. Federal agents would then have to implement different enforcement mechanisms on a state-by-state basis—now, doesn't that sound efficient.
Chief Justice Roberts is widely viewed as wanting to limit the court's influence in both public policy and public life. But Judge Hanen's original nationwide injunction was anything but cautious. In fact, it was the court imposing itself in a policy arena that has historically been left to the executive branch without interference.
As Roberts wrote in a recent dissent:
"Judges should be very careful to make sure they’ve got a real case or controversy before them," Roberts said.
U.S. v Texas is a perfect test case for just how committed Roberts is to exercising the judicial restraint he prescribes.