I have now had a chance to review the transcript in United States v. Texas. On its face, this case concerns fairly technical debates about how to interpret the word “shall” in federal immigration law, and whether the APA permits the remedy of a national vacatur. But lurking under the surface are profound issues that implicate Congress’s Article I powers, the President’s Article II powers, and the Article III jurisdiction of the federal judiciary. I will take these topics in reverse order.
The threshold issue in this dispute is whether Texas has Article III standing to challenge the federal immigration policy. But Article III is also implicated at the backend of the case. Specifically, do the federal courts have Article III jurisdiction to issue a national vacatur under the APA? In a colloquy with Justice Barrett, Solicitor General Prelogar said “that when courts issue remedies that go beyond the parties in the case, it can take courts beyond the traditional forms of relief that are authorized, whether under Article III or under the statute.” Now the government has forcefully argued that the APA does not permit the national vacatur. But Prelogar added an additional ground–that Article III does not support this remedy.
Justice Barrett asked Prelogar why the United States does not treat the remedial issue as a jurisdictional argument.
JUSTICE BARRETT: Okay. I’m glad you brought that up because I have a question about that too. Why don’t you treat this then as a jurisdictional argument? You concede that vacatur could be appropriate in a special statutory scheme but say simply that as a matter of statute, statutory interpretation, that APA doesn’t authorize it. Why isn’t it a matter of Article III jurisdiction? Why do you concede that it would be acceptable if Congress specifically authorizes it?
We know all too well from California v. Texas that if a court cannot issue an order that would remedy the plaintiff’s injury, then the federal court lacks standing. Justice Barrett raised this point forcefully during oral argument in the ACA case, and the ultimate opinion tracked her questions about redressability. (I discussed this colloquy in my article for the Cato Supreme Court Review.)
General Prelogar tried to dodge the question. Barrett pinned her back and said “No, no, no. I mean as a matter of Article III.” Prelogar’s response was non-responsive. She did not want to say whether the national vacatur issue implicated Article III.
GENERAL PRELOGAR: As a matter of Article III jurisdiction, you know, I guess it would be possible to think about it that way. We haven’t made that argument, but I wouldn’t want to shut the door on it because of the -the particular concerns with extending beyond party-specific relief.
“You know, I guess?” Yikes.
Later, Barrett returned to this point in another exchange with Prelogar. Here, Barrett tracked her question from California v. Texas:
JUSTICE BARRETT: I’m saying that if a court lacks jurisdiction when it lacks the authority to issue a particular remedy, why wouldn’t we understand the APA then –why wouldn’t we understand this issue as a matter of statutory interpretation to be jurisdictional? Because, if the district court is entertaining an action to award a particular kind of relief that it lacks authority to award, would that be jurisdictional?
Here, Prelogar stated that the government has not argued that the national vacatur issue implicated Article III. I think her prior statement may have departed from the government’s position.
GENERAL PRELOGAR: We have not previously argued that this APA limit is jurisdictional. The reason we made the arguments under 1252 is because it specifically says no court shall have jurisdiction to do this, and we think that that is Congress clearly acting to attach jurisdictional consequences to an exercise of remedial authority. But I take the point and I think it might be possible to conceive of a jurisdictional basis as well if a statute is actually preventing a remedy from being ordered.
I wonder if Prelogar slipped in her initial answer to Barrett above, and later tried to run away from it? She seemed to backtrack. Justice Barrett has become the Court’s leading questioner on jurisdiction. Advocates better come prepared to consider non-obvious Article III points for Justice Barrett.
If Justice Barrett is the Court’s Article III stickler, then Justice Kavanaugh is the Article II wonk. The former White House lawyer asked numerous questions about what limits Congress could place on the Executive Branch’s discretion to enforce the law.
Would a statute violate Article II, if “shall” actually meant “shall,” and the President was required to detain certain aliens?
JUSTICE KAVANAUGH: is it ever unconstitutional? In other words, does the President have an Article II ability to say I possess enforcement discretion under the Constitution and any attempt by Congress to restrict that enforcement discretion by saying “shall” means “shall” would itself violate Article II? You gestured Article II briefly in your brief, but you don’t really unpack it very much. I’m curious what your answer is to whether that could be unconstitutional.
Prelogar responded that in theory, such a statute might be unconstitutional.
GENERAL PRELOGAR: So I think that, yes, there could be certain circumstances where Congress has engaged in a really intrusive effort to command the executive to take particular enforcement actions to prosecute individuals in a particular way where we would say that that does transgress Article II limits.
Kavanaugh interjected, and asked if the statute at issue in this case violated Article II. Prelogar responded that the government has not argued this statute is unconstitutional, primarily because “shall” does not actually mean “shall.” (Just like “discriminate” does not mean “discriminate” in SFFA v. Harvard, “established by the state” means “established by the federal government” in King v. Burwell, and a “penalty” is really a “tax” in NFIB v. Sebelius.)
Kavanaugh returned to Article II in his questioning of Texas Solicitor General Judd Stone. He referred to the President’s Article II authority over prosecutorial discretion.
And so too on the merits question, there is a tradition of reading statutes with -against the backdrop of prosecutorial discretion that at least in the federal context is rooted in Article II and then Castle Rock talks about that background principle in the state context.
Kavanaugh pressed further, and asked about a statute that required the executive branch to prosecute everyone who violated a law. Stone conceded, as he had to, that such a statute would implicate Article II:
JUSTICE KAVANAUGH: How about if Congress said you must prosecute, that the executive must prosecute everyone who violates this law?
MR. STONE: I think that would be the strongest possible Article II argument available. Nothing in the text, nothing in the states’ theory –
JUSTICE KAVANAUGH: That would be a problem under Article II, don’t you think?
MR. STONE: I think so, Your Honor, yes, Your Honor, I think that would be the strongest possible Article II argument available.
Here, I had flashbacks to the ongoing debates about the validity of DAPA and DACA. This issue never seems to go away.
The connections between this case and Articles II and III are clear enough. But the linkage to Article I is less obvious: if the states do not have standing, then how could the executive’s policy ever be stopped? One answer, of course, is Congress.
Again, Justice Kavanaugh led this line of questioning. He inquired about a new administration that refuses to enforce environmental laws or labor laws. In that scenario, he asked, would anyone have standing to challenge the non-enforcement decision?
So, on standing, if a new administration comes in and says we’re not going to enforce the environmental laws, we’re not going to enforce the labor laws, your position, I believe, is no state and no individual and no business would have standing to challenge a decision to, as a blanket matter, just not enforce those laws, is that correct?
Prelogar responded, as she had to, that any check must be political, and not judicial:
GENERAL PRELOGAR: That’s correct under this Court’s precedent, but the framers intended political checks in that circumstance. You know, if –if an administration did something that extreme and said we’re just not going to enforce the law at all, then the President would be held to account by the voters, and Congress has tools at its disposal as well.
Kavanaugh asked what those tools were?
So, if courts aren’t going to be able to enforce those congressional mandates, what are the exact tools that Congress has to make sure that the laws are enforced in the United States?
Prelogar responded with the power of the purse:
GENERAL PRELOGAR: Well, I think that Congress obviously has the power of the purse. It can make the executive’s life difficult with respect to its decisions about how to appropriate funds. Congress has oversight powers.
We heard many of these arguments during the DACA and DAPA litigation over the past decade. If Congress doesn’t like what the President is doing, Congress can act. But stopping non-enforcement policies is not so simple. By its very definition, the executive branch is not spending money to enforce the law. The power of the purse would not work for DACA, because it was funded by application fees. Indeed, the OLC opinion that blessed DACA boasted about this attribute, which puts it beyond the purview of the appropriation power. (Here, I see an analogy to the CFPB, which likewise is not subject to Congress’s appropriation power.) Congress could amend the underlying immigration law to expressly bar DACA and DAPA, but doing so would require overriding the President’s veto. And in any event, Congress shouldn’t have to change a law that the President is already ignoring. The law is fine; the problem is the President. And the President could just ignore the new law as well. Congress could impeach and remove the President for failing to take care that the laws are being faithfully executed, but that would simply elevate the Vice President, who could likely continue policy. The political checks that Prelogar cites are illusory.
Kavanaugh did not seem persuaded about the efficacy of these congressional “tools”:
But –but I think your position is, instead of judicial review, Congress has to resort to shutting down the government or impeachment or dramatic steps if it –if some administration comes in and says we’re not going to enforce laws or at least not going to enforce the laws to the degree that Congress by law has said the laws should be enforced, and –and that’s forcing –I mean, I understand your position, but it’s forcing Congress to take dramatic steps, I think.
These steps are “dramatic.” Prleogar agreed, but said political checks can prevent these abuses from happening in the first place.
GENERAL PRELOGAR: Well, I think that if those dramatic steps would be warranted, it would be in the face of a dramatic abdication of statutory responsibility by the executive.
And there’s a reason we don’t see that throughout our history because of those political checks that prevent the executive from taking those kinds of actions. And it would be like saying, if the President decided to pardon every federal criminal and release them all, obviously, no one could sue about that, but there’s a reason that doesn’t happen.
I think the response is that political checks have failed to stop President Biden, and before him President Obama, from (ab)using their prosecutorial discretion to vastly under-enforce immigration laws. I do not think a majority of the Court is willing to sideline the judiciary entirely from these matters.
This case presents constitutional issues from almost every angle. I will much more to say about it in later posts.