United States v. Texas challenges Obama on DACA and DAPA.

Chief Justice John Roberts Faces His Absolute Worst Nightmare

Chief Justice John Roberts Faces His Absolute Worst Nightmare

The law, lawyers, and the court.
Jan. 20 2016 5:13 PM

John Roberts’ Worst Judicial Nightmare

Conservatives say Obama does not “take care.”

Chief Justice John Roberts.
Supreme Court Chief Justice John Roberts and Justice Anthony Kennedy visit with members of Congress after Pope Francis addressed a joint meeting in the House Chamber of the Capitol, Sept.r 24, 2015, in Washington, D.C.

Photo by Chip Somodevilla/Getty Images

The chief justice of the United States did not look particularly peppy when he trundled onto the bench on Tuesday. There are, of course, many reasons why John Roberts might have looked bleary-eyed and drained on that freezing morning. But I have a sneaking suspicion that the chief was disquieted by the fact that his court had just agreed to hear a legal challenge to the Obama administration’s immigration executive actions—a case that, in many ways, constitutes Roberts’ absolute worst nightmare.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Roberts is a justice who waxes sentimental about judicial restraint at every turn, and now he is being forced to vote in a case that makes a mockery of the very concept. His mentor, former boss, and predecessor, Chief Justice William Rehnquist, crafted rules that might as well have been designed to forestall this litigation. Roberts strives to keep his court above politics, and now he must hear a case that is political to its core. United States v. Texas is purportedly a conflict about immigration laws and executive power. But I am starting to think that the entire case is actually a sadistic prank by a bunch of Republican governors who are still furious with Roberts for his votes upholding Obamacare.


Start with judicial restraint. During his confirmation hearing, Roberts famously stated that “my job is to call balls and strikes.” United States v. Texas is a strike if there ever was one. Two Obama executive actions, Deferred Action for Childhood Arrivals and Deferred Action for Parental Accountability, defer the deportations of people who arrived in the United States as children, known as DREAMers, and and the undocumented parents of citizens or lawful permanent residents.* Critics of DACA and DAPA claim the programs constitute unlawful executive workaround of existing law. That’s bunkum. Congress has explicitly instructed the executive branch to “establish … national immigration enforcement policies and priorities.” Current law also grants the secretary of homeland security the power to “establish such regulations” and “issue such instructions” to guide the deportation of undocumented immigrants. With DACA and DAPA, President Obama has simply instructed the Department of Homeland Security to prioritize the deportation of violent felons—and defer the deportation of DREAMers and their parents. 

Texas and its co-plaintiffs argue that, even if the programs are lawful, they are invalid because DHS ran afoul of “notice and comment rulemaking.” That clunky phrase simply means that DHS, as a government agency, is required to give notice and ask for comment before issuing legislative rules. But DACA and DAPA aren’t legislative rules: They’re broader policies about immigration enforcement, and agencies are permitted to issue such policies without notice or comment. The rule of thumb here is that a regulation constitutes a policy when it gives agents enforcement discretion. DACA and DAPA do just that, asking DHS employees to consider deferent deportment for DREAMers and their parents but not requiring them to do so. That critical detail clearly gave DHS the authority to bypass the notice-and-comment phase.

Perhaps recognizing the flimsiness of its statutory and procedural arguments, Texas tacks on a constitutional claim, arguing that DACA and DAPA violate the Take Care Clause of the Constitution. (“The President … shall take care that the laws be faithfully executed.”) This is really silly, for two reasons. First, Obama is “tak[ing] care that the laws be faithfully executed” by establishing immigration enforcement policies and priorities, as Congress has directed him to do. Second—and more gallingly—the Take Care Clause has never been enforced by the Supreme Court. It is widely regarded as “nonjusticiable,” meaning federal courts have no authority to enforce it. That makes sense, because Congress has passed thousands of laws, not all of which the president can vigorously enforce simultaneously. If courts could use the Take Care Clause to force the president’s hand on a certain statute, the federal judiciary would become a scullion of the minority party: Whenever a Democrat holds the presidency, Republicans could sue to make him enforce their favorite statutes and vice versa.

For that reason, courts and legal commentators have long agreed that the clause represents a general constitutional obligation rather than a specific, justiciable duty. But in the Obama era, the Heritage Foundation has pushed conservative law professors to develop a more robust theory of the Take Care Clause. If Roberts signs off on it, his court will be flooded with highly political lawsuits that will make King v. Burwell look like Marbury v. Madison. The Supreme Court would become just another player in a partisan battle, not a lofty third branch perched above politics.

Speaking of: There is really no way to see United States v. Texas as anything but a bitterly partisan dispute between Republican governors and a Democratic executive. Of the 26 states bringing the suit, 26 are controlled by Republican executives. If this fact makes you question whether the Constitution doesn’t have some safeguard in place to prevent governors from suing a president over a purely political dispute, I have good news: It does. In order to sue the government, a plaintiff must have “standing”—that is, a specific, personalized injury inflicted by the allegedly unlawful government action. As John Roberts explained in 1993, standing rules are designed to keep the judiciary out of the “generalized grievances” that consume “the political branches.”

Roberts’ predecessor, Rehnquist, was a stickler for standing. His fixation drew ire from liberals and conservatives in turn, but it kept plenty of toxically political cases off his court’s docket. Now Roberts will have an opportunity to further Rehnquist’s legacy—or spurn it. Texas argues that it has standing to challenge DACA and DAPA because it may have to provide driver’s licenses to immigrants who are granted deferral. Driver’s licenses. If that gives Texas standing, then standing doctrine no longer has any meaning. So long as a state can concoct some speculative reason that it might spend a marginal amount of money in response to a federal action, every state will be able to crowbar its way into the courthouse to challenge federal law.

It is possible that Roberts sees United States v. Texas as a straightforward legal dispute and that he won’t let standing issues or political concerns stop him from invalidating DACA and DAPA. It is also possible that Roberts has avoided the news over the past seven months and doesn’t know that a vote for Texas would put him in the same camp as Donald Trump and Ted Cruz. But the chief is a smart man and a savvy jurist. He is willing to cast apolitical votes to save programs he doesn’t like, especially when the legacy of the court is on the line. So yes, Roberts could use United States v. Texas to destroy Obama’s signature immigration achievement. But he could also use the case send a clear message that he will not sacrifice his court’s legitimacy to help the Republican Party score short-term political victories.

*Correction, Jan. 21, 2016: Due to an editing error, this article originally misstated that DAPA defers the deportations of parents of people who arrived in the United States as citizens. It defers the deportations of the parents of citizens or permanent residents. (Return.)