Will the Supreme Court Take the DAPA Case?

By John Miano, January 4, 2016

There is a lot happening on the immigration legal front right now, including the government's petition to the Supreme Court for a writ of certiorari to review the preliminary injunction over DAPA; DHS's new proposed regulations to effectively hand out green cards in excess of the annual limits; DHS's request for a delay of the District Court's vacatur of its guestworker program created through regulation out of student visas; and, on the horizon, a court decision on allowing spouses of guestworkers to work in the United States as well.

All of these events are closely related. However, the drive-by media's focus has been entirely on DAPA (granting work permits to illegal aliens with U.S.-citizen children), overlooking the other happenings. This may be the result of ignorance. On the other hand, it could be a replay of the coverage of "comprehensive immigration reform", where the media's desire to get an amnesty for illegal aliens was such a priority that the media ignored the odious provisions in rest of the bill. Similarly, here the media's desire to get the courts to approve an amnesty for illegal aliens may be causing the media to ignore the full implications of such a decision.

As I am in the middle of some of these court fights, my time for writing about them is limited. This forces me to prioritize issues by time sensitivity, rather than by the best way to explain them.

Coming up in a couple of weeks is the Supreme Court's decision on whether to grant a writ of certiorari (i.e., to take the case) for the DAPA case, Texas v. United States. Generally, the odds of the Court taking a case are extremely low (roughly 1 in 100). However, this petition comes from the government so, if you are wagering, it is more likely than not the Court will grant the writ and hear the case.

Most of the punditry on this question has been political advocacy disguised as "legal" analysis arguing why the Supreme Court will or should hear the case.

Here, I am going to play devil's advocate and explain why the Supreme Court should not hear Texas right now. I do not recommend placing bets on this analysis.

The Supreme Court should not hear Texas now because it a decision over whether to grant a preliminary injunction. The Supreme Court normally only takes cases that are final.

Step back a moment and ask, what was the scope of the Fifth Circuit's decision?

Really there were only two things. First, does the court have jurisdiction? In other words did the states have standing? I wrote about that previously. Second, did the District Court abuse its discretion when it granted the preliminary injunction?

That does not give the Supreme Court a whole lot to review if it were to hear the case.

The purpose of a preliminary injunction is to give a court the discretion to preserve the status quo during litigation:

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.

A preliminary injunction does not decide the merits, but a judge can be thinking, "It's more likely than not that the plaintiffs will be successful. They might not be, but if I do not grant the injunction and the plaintiffs are successful, unwinding afterwards will be a complete mess."

The government tries to get around this obvious defect (review of a court exercising discretion) in its petition by transforming the review into one of the merits of the case, which have not been fully analyzed by the lower courts. The government restates the issues to the Supreme Court as:

  1. Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action.

  2. Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.

  3. Whether the Guidance was subject to the APA's notice and comment procedures.

Only the first of these really goes to the heart of what was being decided in the Fifth Circuit. And even that issue creates a problem for review.

Let us assume that the Supreme Court hears this case, agrees to decide the government's first issue as stated, and rules in the government's favor. What happens then?

The case goes back to the Fifth Circuit, which could then say, "OK, they don't have standing on that basis, but there are 50 other ways in which we can find standing for the states — we only decided one of them in the preliminary injunction."

The result is the Supreme Court has just wasted its time on an interlocutory review of a case that is not final.

Texas has played the government's game by restating the issues as:

    1. Whether at least one respondent has standing to challenge DAPA.

    2. Whether DAPA is unreviewable under the Administrative Procedure Act.

  1. Whether DAPA is contrary to law or violates the Constitution.

  2. Whether DAPA was subject to the Administrative Procedure Act's notice and comment requirement.

Issue 1a highlights what I stated previously about standing. The Fifth Circuit only addressed one ground for standing (all that was needed for the motion). There are 26 state plaintiffs that have multiple grounds for standing. If the Supreme Court were to reverse the single basis the Fifth Circuit found for standing, the Fifth Circuit could simply come up with another one at this point.

In any event, we had the District Court considering success on the merits, irreparable harm, balance of equities, and the public interest.

We had the Fifth Circuit review whether the District Court abused its discretion.

Now we have the parties asking the Supreme Court to review the merits of the case before the case has been decided.

This would be a mess in the Supreme Court now.

Another way the government tries to get around its petition defect that the case is only at the preliminary injunction state is to claim, "It is unlikely any other court of appeals will address the questions presented here."

That is not quite true. There are at least three other cases addressing overlapping issues working their way through the federal courts and all of them are further advanced than Texas v. United States.

How much issue overlap will there be between these other cases after Texas is decided?

We do not know for certain — because Texas has not even reached a decision on the merits. If the Supreme Court waited, it could look at a full record in Texas and full records in the other cases to get a better picture.

From a legal perspective, it makes no sense for the Supreme Court to grant the government's petition to give an interlocutory review.

However, my guess is that the members of the Supreme Court will imagine the scathing editorials in the New York Times, Washington Post, and L.A. Times that are certain to be published if the Court does not grant the government's petition and that politics will win out over uniform law.

I hope to write about the extremely broad implications of Texas v. United States soon.