Wednesday, January 6, 2016

United States v. Texas: Will the Court Grant the U.S. Government's Petition for Certiorari?

Briefing continues on the U.S. government's certiorari petition in United States v. Texas, the potential blockbuster immigration case that could have dramatic impacts on the powers of the Executive Branch to enforce (or not) the immigration, as well as other, laws.

Last week, Texas filed its response to the federal government's petition for certiorari.  The government yesterday filed a reply brief.  The Court is expected to consider the petition at its conference on January 15.

Lyle Denniston on SCOTUsblog analyzes the U.S. government's reply brief.  Marty Lederman on Balkinization offers these five reactions to the briefs: 

  1. Texas's brief is effectively an acquiescence, not an opposition.
  2. There's no distinct constitutional question.  
  3. Texas's substantive argument goes far, far beyond DAPA--it's a full-throated challenge to Reagan-era work authorization regulations that have allowed dozens of categories of aliens to be employed for many decades.
  4. The DAPA policy does not purport to "deem lawful" any unlawful conduct by aliens. 
  5. The Court should reject Texas's strikingly expansive theory of "self-generated" standing.

It strikes me that there is little question that the Supreme Court will grant the U.S. government's petition for certiorari.  United States v. Texas unquestionably raises pressing and significant legal issues of national importance that affect the relationship between Congress, the President, and the courts, as well as the administration and enforcement of the U.S. immigration laws.  Unlike Arizona v. United States, which at the time was thought to be a blockbuster, United States v. Texas is not limited to federal preemption of state laws purporting to facilitate immigration enforcement.

Stay tuned for further developments.


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