Symposium: Tripped up by a tie vote

Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. His book, Business and the Roberts Court, is forthcoming this summer from Oxford University Press. He is a regular contributor to the popular legal blog The Volokh Conspiracy. He participated in brief amicus curiae of law professors supporting the claim that Texas had standing to challenge the Obama administration’s actions, but taking no position on the substantive merits of the case.

Many had hoped the Supreme Court would resolve the fight over the Obama administration’s controversial immigration reforms and, in the process, bring clarity to the broader debate over the scope of executive authority. It was not to be. Instead, on the penultimate day releasing opinions, the Court confessed its inability to resolve the case, affirming the U.S. Court of Appeals for the Fifth Circuit by an equally divided vote.

The fact that the Court split four-four means, in all likelihood, the Obama administration would have lost the case had Justice Antonin Scalia not passed away earlier this year. It also means, in all likelihood, that the administration would have prevailed had the Senate promptly confirmed Chief Judge Merrick Garland to fill Scalia’s seat. (Indeed, the president all but said as much in his initial remarks on the Court’s decision.) This underscores the extent to which Scalia’s passing places the future direction of the Court on the identity of Scalia’s replacement.

U.S. v. Texas was not only about immigration policy and the limits of executive power, however. The case also presented important questions about the scope of Article III standing and, in particular, the ability of state litigants to assert standing in order to challenge actions of the federal government. In Massachusetts v. Environmental Protection Agency the Court had declared that state litigants are entitled to “special solicitude” when seeking to vindicate their sovereign interests in federal court. Since then, however, the Court has said very little about what such “special solicitude” entails and how it should influence the Article III inquiry. The Court had the opportunity to speak to this question in American Electric Power Co., Inc. v. Connecticut but, coincidentally enough, had split four-four on standing and provided no guidance. As the Court issued no opinion on any aspect of the Texas case means the Court was almost certainly split four-four on this issue as well.

While there may not be many other immigration cases in the lower courts that could have been affected by a ruling in this case, the same cannot be said of standing. Article III standing cases come up all the time, and as states become more active and aggressive litigants, questions about state standing appear to arise with greater frequency. State attorneys general have discovered litigation as a powerful way to push back against alleged federal overreach and against the policy initiatives of presidents with which state AGs disagree, so questions about the extent to which “special solicitude” tilts the scales in the favor of state plaintiffs will remain.  And even if (as some of us argued in an amicus brief) the case for state standing in Texas was less aggressive or ambitious as that accepted by the Supreme Court in Massachusetts, the lack of an opinion examining the state standing leaves lower courts with little guidance.

The Court’s four-four split will not be the last word on the lawfulness of the administration’s immigration reforms, or the broader question of executive branch authority over immigration policy. As an initial matter, the administration has several options if it still wants Supreme Court review of these challenges, even as it races against the clock. First, as the plaintiffs did in Friedrichs v. California Teachers Association, the administration could seek a rehearing, which would occur next Term when there may be a ninth Justice on the Court. Alternatively, if the administration is concerned that there may not be a ninth Justice to break the deadlock until after the election, it could appeal the lower court’s final judgment on the merits. This case, after all, concerned an appeal of a decision on a preliminary injunction, so there is another opportunity for Supreme Court review in this same case, even if it would be hard to obtain such review before the administration leaves office.

One of the grounds upon which the lower court halted the administration’s reforms was the administration’s failure to go through a notice-and-comment rulemaking. So another way to reassert the president’s policy priorities would be to undertake such a proceeding and repromulgate the policy as a regulation, instead of as a guidance. Texas and other states would almost certainly challenge any such action, but they would be unable to make their procedural claims.  And even if such a proceeding could not be completed before the election, a sympathetic administration could finish the job. This is not a drawback unique to this approach, however, as the next administration will have the opportunity to revise or withdraw the Obama administration policy if it so chooses in any event.

In discussing U.S. v. Texas, legal and political commentators tended to split along ideological lines. Progressives generally supported the president’s authority to take broad unilateral actions; conservatives generally opposed. Ironically, many of the same commentators took precisely the opposite position on similar questions of executive power during the Bush administration, and one of the measures that supported the administration’s position here was adopted under President Ronald Reagan.

The polarized nature of the debate over immigration policy, and executive power more generally, is unfortunate. These are questions that should transcend partisan allegiance. The administrative authority exercised by one president will inevitably be utilized by executives from another party and with different policy preferences. Had the Obama administration prevailed here, the Court would have set a precedent that could have augmented the authority of a President Hillary Clinton or President Donald Trump. Likewise, a judicial rebuke would constrain future presidents as well.

In the short run, this decision places the future of immigration policy in the hands of the electorate. The next president will ultimately decide whether to continue to pursue DAPA and DACA-type reforms or whether to adopt a different course. Likewise the next Congress will decide whether to work with the executive branch to adopt significant immigration reforms or whether to sit back and see what the executive branch is willing to do with pen and phone. Either way, the next election will have a major influence on the future of immigration policy.