Dahlia Lithwick discusses United States v. Texas, Merrick Garland, and the increasingly partisan Supreme Court.

Sen. Al Franken Explains Why Merrick Garland Was the Perfect Selection for This Moment 

Sen. Al Franken Explains Why Merrick Garland Was the Perfect Selection for This Moment 

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April 22 2016 3:22 PM
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Are Supreme Court Judges Merely Politicians in Robes? 

In this Amicus transcript, read what Dahlia Lithwick asked Sen. Al Franken about partisan politics at the high court. 

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We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 42, in which Slate’s Dahlia Lithwick discusses United States v. Texas and the stalemate over Merrick Garland’s nomination. 

United States v. Texas centers on Obama’s executive order from 2014 to defer the deportation of some 4.9 million undocumented immigrants. Does the president have constitutional authority to take this kind of immigration action? Do the plaintiff states have the legal standing to sue over federal measures they just don’t like? Read how Dahlia unpacks the case with chief counsel at the Constitutional Accountability Center, Brianne Gorod, who co-authored an amicus brief in support of the Obama administration.

Dahlia also chats with Minnesota Sen. Al Franken, a member of the Senate Judiciary Committee, about the lack of progress on Merrick Garland’s confirmation hearing. This transcript has been edited and condensed.

Dahlia Lithwick: This was a quite week at the high court. It was the second of a two-week spring break away from oral argument, and so many court-watchers have been focused on next week when the Justices are going to hear a great big case about President Obama’s immigration policy.

We’ve also continued to track the utter nonprogress of the effort to fill the vacancy on the U.S. Supreme Court. Barack Obama’s nominee, Judge Merrick Garland, spent part of his week in so-called courtesy meetings with Republican members of the Senate Judiciary Committee, who are still declining to give him a confirmation hearing but quite happy to share oatmeal and eggs with the good judge.

Later on in today’s podcast I’m going to speak with Minnesota’s Sen. Al Franken, a member of the Senate Judiciary Committee, to get some sense of what the heck is happening up there on Capitol Hill.

But first, we’re going to take a closer look at that immigration case that’s being argued Monday called United States v. Texas. It centers on Obama’s big executive order from 2014, the president’s Deferred Action for Parents of American Citizens and Lawful Permanent Residents, or DAPA, along with his expansion of the Deferred Action for Childhood Arrivals program, or DACA.

The program is expected to allow some 4.9 million undocumented immigrants to temporarily work and stay in the country, but it has never been implemented. And that’s because a group of Republican-governed states led by Texas almost immediately sued to block it. The issue for the court is pretty simple: Does the president have the unilateral authority to take this kind of immigration action? And as a secondary but perhaps just as important question, do the state governments have legal standing to sue the federal government over measures they just don’t like?

Joining us to discuss United States v. Texas is Brianne Gorod. She’s chief counsel at the Constitutional Accountability Center and co-authored an amicus brief on behalf of a bipartisan group of former members of Congress who support the Obama administration’s side in this case. So, welcome to Amicus, Brianne.

Brianne Gorod: Thank you for having me.

Lithwick: Now, did I explain that OK? Do you want to take us back to 2014 and help us understand how we got to where we are today?

Gorod: Sure. And, I think it’s actually helpful to go back even further than 2014.

Because, what’s really important to understand about this case is that for decades Congress has conferred substantial authority on the executive branch, on the president, to exercise discretion in determining how best to implement the nation’s immigration laws.

This isn’t surprising, right? I mean, immigration is a field in which events on the ground are constantly changing. It’s a field that touches on our national security, on foreign policy. And so Congress has determined that the executive, within the guidance provided in the laws passed by Congress, should determine how best to implement those laws.

So in 2014, when President Obama announced this DAPA program, that’s exactly what he was doing. He was exercising the discretion that Congress has repeatedly and consistently conferred on him.

Lithwick: The idea is that this is kind of an element of foreign policy, and that the president is best situated to know what the facts are on the ground, right? This is a lot of moving parts, and of the branches, we think the executive is in the best possible posture to know what’s going on and what needs to be done. Is that right?

Gorod: That’s absolutely right.

And that’s why, in these initiatives, the president made a point of saying that we’re going to prioritize removing individuals who have criminal records, who pose a national security threat, who have recently come across the border. And we’re not going to prioritize removing people who have been here for a long time, who are productive members of the American community, and, significantly, who have children who are US citizens or lawful permanent residents. No, there’s just no need for us to prioritize removing those people, particularly given that there are limited enforcement resources.

There are roughly 11 million undocumented individuals in the country today, and Congress has not appropriated enough money to remove all those individuals. The president necessarily has to make decisions about which individuals to prioritize when it comes to removal. And that’s what he’s doing in these initiatives.

Lithwick: Now take us back and tell us about these suits.

We have 25 states, mostly controlled by Republican legislators, who all get on board and accuse the president of what, specifically? Massive overreach, way outside the boundaries of his executive prerogatives? The substance of the suit is what? That he just does not have the authority to do this kind of executive action?

Gorod: They say, basically, that these actions violate this federal law called the Administrative Procedure Act.

It sounds very wonky, but it’s just a law that governs how administrative agencies, federal agencies operate. They say that it violates it for two reasons. One, they say these initiatives are what’s called arbitrary and capricious, so they violate the immigration laws that Congress has passed. And, they also say that it violates what’s called notice and comment rule-making requirement.

This is a basic requirement that often applies to agency action. It says, when you are going to do something, you need to give the public notice about it, and you must allow people to comment on it before you issue a final rule. What’s really important to know about the Administrative Procedure Act, is that it expressly exempts general statements of policy from that requirement. And, that’s what these directives are. They simply give the public information about how the agency is going to exercise the discretion that it was granted by Congress.

So the thrust of the case, then, is do these directives violate the immigration laws, or are they consistent with the immigration laws? What the government has consistently argued—supported by amici, friends of the court’s briefs from members of Congress both current and former, from the business community, from faith leaders, from a whole host of people—is these directives are entirely consistent with the immigration laws because those laws specifically confer authority on the executive branch to make these sorts of decisions. To decide what our enforcement priorities are, to decide how best to implement those enforcement priorities.

Lithwick: Brianne, what do you say to the argument, on the other side, that this simply represents the Obama administration trying to achieve unilaterally what Congress was supposed to do in the first instance, which is reform and fix immigration policy?

Gorod: That’s a common misperception of this case, obviously pushed by the other side, that President Obama was just acting because Congress wouldn’t. But the fact is that Congress has acted. Congress has, over the years, repeatedly enacted immigration laws. And what the President is doing in this case is simply exercising the authority that those immigration laws very specifically grant him.

These actions are not a substitute for a comprehensive immigration reform. But the fact that Congress hasn’t passed that reform doesn’t do anything to alter the pre-existing authority in the immigration laws that Congress has repeatedly passed over the years.

Lithwick: Can you tell us, Brianne, how this case gets its way all the way up to the U.S. Supreme Court so quickly, and how it is that the court is looking at an issue that has not yet gone to trial?

Gorod: This was brought in District Court, and the District Court entered what’s called a preliminary injunction. Basically we’re not going to have a trial first, we going to look at the legal arguments and decide whether we think there’s a likelihood that the parties have a chance of prevailing on the merits, as well as a number of other factors. So the District Court entered that preliminary injunction. It then went to the Fifth Circuit and was briefed there on an expedited basis. The Fifth Circuit ruled in a divided decision for the states. And then the Supreme Court took it up.

It does feel quick, to some degree, by legal standards. The law often moves quite slowly. But for folks who have been waiting to know whether these programs will go into effect, it actually feels like quite a long time.

These programs were supposed to have gone into effect well over a year ago, back in February. Because they were enjoined, because the District Court blocked them, nothing has happened. And nothing can happen until we get this ruling from the Supreme Court.

Lithwick: That’s such an important point that I think folks don’t realize, that this in effect presses pause on this executive action. Until the court makes some determination of how to go forward, there’s a tremendous amount of uncertainty about executive actions that are two years old now.

Gorod: That’s right. That’s why I think it’s so important that we get a majority ruling from the court.

Since Justice Scalia passed away there’s been lots of talk of 4–4 decisions. We’ve seen a couple of them already, and there’s been speculation about whether we’ll see one in this case. I don’t think we will. I think we’re likely to see a majority of the Justices on the court rejecting this challenge to the administration’s initiatives.

But if we didn’t, if we saw a 4–4 decision, it would really leave a lot of legal confusion and mess, because we have what is a nationwide injunction. That means that this injunction by a single lower court is applying across the entire country. There’s going to be a lot of legal questions about what that means if we don’t get a majority ruling out of the court this June.

Lithwick: Brianne, I want you to unpack what you just said. Can you help our listeners understand why the court might not even get to this fundamental question about executive power, because the first thing they need to determine is whether the states even have a right to bring this suit?

Gorod: Sure. Standing, as a constitutional doctrine, it governs whether a party can get into court at all. It’s important to understand, if the parties don’t have standing, the court can’t get to the merits. It’s not allowed to get to the merits. It has to dismiss the case for that reason alone.

An important part of standing is that the plaintiff must have a legal injury, a real injury that the courts can address. The major injury that Texas asserts here is that they provide subsidized driver’s licenses to recipients of deferred action. If there are all these recipients of deferred action under the President’s immigration initiatives, that’s going to increase their costs of subsidizing driver’s licenses.

The government’s response to this is, basically, you chose to subsidize these driver’s license. That is a voluntary choice on your part. You can’t manufacture this kind of injury to get into court.

I think what’s going to be really interesting, in argument, is to focus on and listen to what questions the chief justice in particular asks about standing. In his first decade on the court, Chief Justice Roberts has been a consistent vote to limit parties’ abilities to sue. In case after case that’s been his view, and it’s been a very strongly stated one.

He was actually in dissent in the key case, or one of the key cases, that the states rely on to establish standing. I think those past votes of the chief are particularly important because the chief justice is also really concerned about politicization of the court. He’s really concerned about this growing perception that the Supreme Court is a partisan institution, that the justices are just perceived as politicians in robes. And I think if he were to conclude that these plaintiffs do have standing and then vote to invalidate the President’s executive action, it might well look like his views on standing were being driven not by the law, but by the politics of the case.

I think there’s a really good chance that Chief Justice Roberts may not reach the merits of this case at all.

Lithwick: If the court were to say, yes, standing is conferred on these dissenting states simply because they have to issue these driver’s licenses, what are the implications going forward?

Gorod: The government argues that would just be a radical expansion of standing doctrine.

I mean, it would basically invite states to go into court whenever they have any disagreement with federal policy, which would really just change the nature of what the courts are supposed to do, bringing them into all kinds of political disputes. That’s a major argument that the government has been making in this case, and one reason why I think we may see a lot of discussion of standing and the courts past indecisions, and trying to understand how this case is different than those past cases.

Lithwick: Brianne, I want you to help listeners contextualize what all this means in terms of something you suggested earlier, which is that we’re just in a moment where the court looks really partisan, we are seeing appeals of this sort from Republican governors in Republican states. This feels to me like one of those lawsuits that is alleging that Barack Obama has gone crazy and all he wants to do is seize power, and he’s King George, and this is nuts. It seems of a piece with this larger sensibility around this court vacancy, which is this President is lawless and we need to get someone in office who is under control. Is that a fair characterization of at least some of the theatrics that are going around underneath the surface of this lawsuit?

Gorod: I think that’s right. It’s hard not to understand this lawsuit brought by Republican state officials, supported by Republicans in Congress, as anything more than political objections to policies that they don’t like.

I think it’s important to remember that these actions a decade ago would not have been controversial at all. The immigration laws that provide the authority for these executive actions were passed in Congress on a bipartisan basis. Congress has repeatedly blessed deferred action programs like this on a bipartisan basis. In fact, programs like this have been utilized by presidents of both parties going back to the Eisenhower administration.

One of the big issues in the case is whether deferred action recipients can apply for work authorization. The authority to apply for work authorization actually comes not from the Obama initiatives, but from regulations from federal law that dates back to the Reagan administration. So these actions should have been entirely uncontroversial, but in this era when there is a party that is trying to stop President Obama at every turn no matter what he does, this seems like just another effort to get the courts involved in what is essentially a political and policy dispute.

Lithwick: Brianne Gorod is chief counsel at the Constitutional Accountability Center and co-authored an amicus brief on behalf of a bipartisan group of former members of Congress supporting the Obama administration in this litigation. Brianne, thank you very, very much for joining us this week on Amicus.

Gorod: Thank you for having me.

***

Lithwick: Now, on to the other big Supreme Court related news, or should I say not news of the Supreme Court.

Ever since Justice Antonin Scalia died two months ago all eyes have been on Senate Judiciary Chairman Chuck Grassley, holder of the gavel for nomination hearings up on the Hill. This week Grassley invited Barack Obama’s nominee, Merrick Garland, to a lovely sit down over breakfast, where Grassley politely reiterated his position that there will be no hearing and no vote. Other Senate Republicans remain mostly in lockstep behind Grassley, and that has most of their Democratic colleagues on the Hill good and steamed.

We are so honored today to be joined by one of those slightly steamed senators. He represents the great state of Minnesota and also sits on the Senate Judiciary Committee, Sen. Al Franken, it is a pleasure to welcome you to Amicus.

Sen. Al Franken: Well, thank you, Dahlia, pleasure to be with you.

Lithwick: Can you tell us a little bit about what’s happening in the Judiciary Committee, the conversations that are going on now? What has been happening since the Merrick Garland was put forth?

Franken: On Thursdays we tend to have what are called business meetings, or executive sessions, where we’re not doing hearings but we’re marking up legislation and passing it, or not passing it, or voting on nominations. The last couple weeks have just been arguing about this. The last time we had this kind of meeting I got very frustrated, because I show up early to these things and I help get quorum, and then I sit through a lot of my colleagues who come and go. That particular day we had a lot of Republican colleagues who would show up, make their statement, and then leave. And it was all statements about the Garland nomination. And there was a lot of contradictory stuff. A lot of stuff like, “We should let the voters decide.” My argument has been, we did, the voters did decide. They elected President Obama, and they re-elected him in 2012 to a four-year term.

And I repeatedly say that scientists tell us there are about 10 months left in the term. But nevertheless they’ll say “Let the people decide.” Then they started saying, “But if the Democrats win, then we might be willing to take up Garland and Elaine Duck.” So I was saying, “OK, so in other words let the people decide unless they decide the wrong thing.” I think I did it with the right tone. I didn’t show exactly how angry and frustrated I was. I did it in a very statesman-like, measured way.

Lithwick: Senator, I think you’ve said, and we’ve heard Republicans say it on the other side, that Garland is a pretty mainstream nominee. This is not a Bork, this is somebody who an awful lot of the folks on the other side had very nice things to say about the last time Obama had a court pick. Isn’t there something a little bit false about likening this to a Borking? This is somebody who is not by any stretch of anyone’s imagination an extreme nominee.

Franken: Among the other things that people didn’t like about Bork, and that senators didn’t like, was his lack of judicial temperament. Everyone who I know who knows Garland said that this guy is stellar in that regard. I haven’t heard anyone that has a bad thing to say about this guy.

It’s interesting, the White House, when you’re on the Judiciary Committee, or at least in this case, they called me and asked me if I had any choices for this—this is obviously before Garland was chosen for the nomination—and I said, I don’t have an individual, but what I would like to see, I said, I want the American people after seeing whoever it is you nominate in a hearing for a few days say, I’d like nine of those. And I think that that’s exactly what Garland is and would be if we have the hearings. I think that hearings are just a great learning opportunity for the American people. Not just to take their measure of the nominee, but to learn about really what the jurisprudence is before the court.

Lithwick: Do you mind telling us a little bit about your meeting with Merrick Garland?

Franken: Nothing in my meeting with him was in any way different than what I had heard. I said, you’re known as someone who tries to reach consensus, and how do you do that. He talked about a number of things. One is being honest with the other judges. Another was deciding things narrowly and being able to find a way to do that. We talked about a few things, mandatory arbitration is something on consuming contracts and on employment contracts that I think is over used and keeps people from getting justice, and we discussed a few other issues. He didn’t commit himself in any improper way at all. He was very impressive.

Lithwick: The last thing I want to really ask you about is, Sen. Grassley recently made a bunch of comments on the Senate floor that more or less took aim at John Roberts himself and said, Chief Justice Roberts, you had better not insert yourself in this conversation. He took issue with comments Roberts had actually made before Justice Scalia’s death about how polarizing Senate confirmation hearings have become and how it’s a shame that—as Roberts construes it—that people like Justice Sam Alito, Elena Kagan, Sonia Sotomayor didn’t get overwhelming support from both sides because they were all good nominees. Roberts was saying this had become too political. Sen. Grassley came roaring back at him and said, you know who made this political? You, you made this political. The court has inserted itself into politics. What is going on there? Is attacking the chief justice and the court for being too partisan and too political, is it sort of breaking the final illusion that the court is not politics, or is this just Chuck Grassley telling it like it is and letting the American people know that this is just one more purely partisan political arm of the government, let’s treat it that way?

Franken: I wish it weren’t, and that’s why the Garland selection, I think, was sort of the perfect selection, especially for this moment.

Ironically, I think Grassley’s right, but he’s probably right in the wrong direction. I believe that the Roberts court has been a very conservative, activist, pro-corporate court, and I’m certainly not alone in that. There’re a lot of ironies going around here. And there are so many 5–4 decisions that basically made it harder for people to get into the court room. The Voting Rights Act had to be one of the most activist political decisions. I don’t agree with Grassley on much of this, and he’s kind of right in a 180-degree wrong way.

Lithwick: That’s the best way to be right. Senator, right before I let you go, tell me what your spidey senses are telling you about whether the American people care about this. I think the hope is that nobody votes about the court and by the time November rolls around Merrick Garland will be just another piece of wallpaper and nobody’s really agitated or aggravated about this. Is that your sense, or are you hearing from folks back home that people really just want the Senate to do its job and to have a hearing one way or the other? Does this matter outside of the Judiciary Committee and wonks like me?

Franken: Oh, yeah. But just because it matters with wonks like you and doesn’t matter to some of the Americans doesn’t mean that it doesn’t matter to those Americans. They may not know how it does, but you obviously follow the court and understand how it does affect people. And, whether it be about voting rights or access to justice in the court system, this stuff is absolutely essential and hugely important.

So, I don’t know. I don’t know what’s going to happen between now and the election in terms of whether we’re going to actually have hearings. You know, there seems to be a lot of pressure from money interest not to. So, I’m not sure how big an issue it’s going to be one way or the other, but this is wrong. This was a vacancy caused by a death. No one dies to game the system. You know? So, I think this cuts in a bad way for Republicans, but I think it’s just bad for our system.

Lithwick: Sen. Al Franken represents the state of Minnesota in the United States Senate and he also serves on the U.S. Senate Judiciary Committee. Sen. Franken, thank you very much for your time this morning.

Franken: Thanks Dahlia. Good talking to you.