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The Supreme Court might be headed for a 4-4 split on immigration — and judicial chaos

What a tie decision would mean for United States v. Texas, and why the Court might want to avoid it.

A group of demonstrators walks down the steps of the Supreme Court on Monday, when the court heard oral arguments in the immigration case United States v. Texas.
A group of demonstrators walks down the steps of the Supreme Court on Monday, when the court heard oral arguments in the immigration case United States v. Texas.
Alex Wong/Getty

WASHINGTON — Stepping into the midday 80-degree sunlight after Monday's oral arguments in the Supreme Court immigration case United States v. Texas was like stepping out of the pages of a law book into the world of the living.

Outside, hundreds of demonstrators were chanting, singing, shouting through megaphones, and holding signs — urging the Court's eight justices to let the Obama administration go through with its plans to allow 4.5 million unauthorized immigrants to apply for protection from deportation and work permits. Many of the demonstrators would themselves qualify for the president's executive actions; many more had family members who would. Inside, during 90 minutes of oral argument, the courtroom was so quiet that everyone could hear the justices interrupting each other (collegially) without amplification.

The Supreme Court gives every impression of trying to shut out the real world. And in today's oral arguments, that was just as true as ever; the real-world impacts of the United States v. Texas case — or the ramifications of a 4-4 split Supreme Court decision on one of the most important cases of the term — were studiously and deliberately ignored.

This is, to a certain extent, how the Supreme Court is supposed to work: separating the heated political debate over President Barack Obama's immigration executive actions (which easily gets tied up in how people feel about either immigrants or Obama) from the relatively narrow questions about whether those actions were legal.

But with only eight justices on the bench for the immigration case — perhaps the most important case it will take up this term — the stakes are high. The two potential swing votes on the Court sounded pretty indistinguishable from their conservative colleagues during Monday's questioning, and the Court's studied indifference to the context of its rulings could leave it cracked on the shoals of a 4-4 split decision.

In practice, that would mean that the Deferred Action for Parents of Americans program (DAPA) and the expansion of the Deferred Action for Childhood Arrivals program (DACA+) would be put on hold for the duration of the Obama presidency, and quite possibly forever.

It could also create judicial chaos. The United States v. Texas case would continue to plod, zombielike, through the courts until it receives a final ruling. Meanwhile, supporters of the president's executive actions may try to get a different coalition of states to sue in another court to start implementing them — creating a possible split between appellate courts, in which the executive actions were constitutional in parts of the US and unconstitutional in other parts.

dapa activist sentences
Activists calling for federal judges to reject challenges to President Obama's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program protest outside the Jacob K. Javits Federal building, where naturalization ceremonies take place, on May 19, 2015, in New York City. (Andrew Burton/Getty Images)

It's not an outcome anyone on the Court (or anyone interested in the case) actually wants. But unless the court can manage to cobble together a five-vote majority between now and late June, it's the outcome they're going to get.

The chief justice didn't seem eager to kick the case out of court

In the days leading up to today's oral argument, the prediction of many pundits (including me!) was that the Supreme Court wouldn't issue a ruling on the merits of President Obama's immigration actions at all. Instead, Chief Justice Roberts would join with the Court's liberals to kick out the case entirely, on the logic that Texas lacked standing — legal grounds — to sue over the actions to begin with.

In part, the prediction that Roberts would side with the liberal wing was grounded in the fact that he's particularly sensitive to the Court being perceived as above politics. If there were a way for Roberts to avoid the judicial chaos of a 4-4 non-decision decision, the argument went, that's what he'd do. But it was also based on Roberts's own jurisprudence: When the court had ruled in 2007 that Massachusetts could sue the EPA over not enforcing environmental regulations, Roberts had been among the dissenters voting that, no, it couldn't.

It's almost as if Roberts came into today's oral argument trying to prove us all wrong. He repeatedly challenged the arguments of Solicitor General Donald Verrilli (arguing for the federal government) and Thomas Saenz (arguing for a group of immigrant women who'd qualify for DAPA) when they tried to claim Texas had no legal grounds to sue.

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When Verrilli argued that if Texas really wanted to prevent DAPA recipients from getting driver's licenses (which is the root of their lawsuit), they could change their state law to do just that, Roberts dismissed it as a Catch-22 — if Texas really did try to do such a thing, he said, the federal government would sue them. It was such a good articulation of Texas' position that Texas Solicitor General Scott Keller adopted it himself when it was his turn to argue later in the morning.

And when Justice Stephen Breyer asked in exasperation if Texas could show any harm that DAPA would cause the state other than it costing them money (something Breyer later made clear he didn't find a sufficient reason to bring a case), Roberts interrupted: "Isn't losing money the classic case for standing?"

A partisan gulf on whether Obama went too far

The actual merits of Texas' lawsuit — whether the Obama administration overstepped its bounds by trying to roll out the 2014 immigration actions — only becomes relevant if the court agrees that Texas was allowed to bring the lawsuit to begin with. But on the merits, too, the court appeared to be headed for a 4-4 split.

The court's liberals, led by Justice Sonia Sotomayor and Justice Elena Kagan, grilled Texas Solicitor General Keller about what, exactly, was so unprecedented about the 2014 immigration actions. They were unpersuaded (to say the least) by his most consistent response: that by applying to so many immigrants, and by making them eligible for Social Security benefits and allowing them to apply for work authorization, this stepped on Congress's toes where previous presidential grants of "deferred action" did not. (Justice Kagan, in particular, appeared to think that the problems Texas actually had with the president's executive actions bore no resemblance whatsoever for the things they'd sued over.)

But outside the court's liberal wing, Anthony Kennedy and the conservatives appeared to believe that the federal government was surely overstepping its bounds in some way. Chief Justice Roberts and Justice Alito mocked Solicitor General Verrilli's attempt to distinguish between being "lawfully present" in the United States (which DAPA grants) and having a legal right to be in the US (which it does not). "Lawfully present does not mean you're legally present in the United States?" Roberts asked mockingly; Alito sputtered, "I'm just talking about the English language. I don't understand it."

Typically, Justice Kennedy is the court's swing vote. And the last time the court heard a major immigration case — the 2012 case United States v. Arizona — Kennedy both provided the crucial fifth vote for the Obama administration and wrote the opinion himself. But in United States v. Texas, the absence of a clear "limiting principle" that would constrain the executive branch appears to weigh more on Kennedy than the idea of policy moderation.

He tipped his hand early: "the President has admitted a certain number of people and then Congress approves it. That seems to me to have it backwards. It's as if ­­that the President is setting the policy and the Congress is executing it. That's just upside down."

The Court has two months to hammer together a majority

If the oral argument is any indication, the court's headed for a 4-4 split decision. That's, legally, the equivalent of no decision at all. The 5th Circuit's ruling will stand — keeping DAPA and DACA from going into effect. The lower courts will continue to consider the case (which has been more or less on hold while the Supreme Court considers the first-stage injunction).

Advocates may try to create a circuit split by suing to bring DAPA into effect in another part of the country. Or they could simply deem DAPA and DACA dead, and acknowledge that the 4.5 million immigrants it could have protected will remain vulnerable to deportation for the remainder of President Obama's time in office. Their only hope would be for a Democratic president to be inaugurated in 2017 and try some other way to grant relief to unauthorized immigrants.

But "if the oral argument is any indication" is a big, big if. There are two big reasons to believe that what the public saw on Monday doesn't necessarily reflect how the Supreme Court will rule two months from now at the end of the session.

The first: The questions a justice asks at oral argument don't necessarily reflect how he actually feels about the case. Immigration lawyers might know this lesson better than anyone: After the oral arguments in the 2012 US v. Arizona case, it looked like not only Justice Kennedy but even some of the court's liberals might be prepared to side with the state.

Multiple lawyers who side with the federal government assured me that if Roberts and Kennedy seemed to be asking tough questions, well, that's just their job. To David Leopold, the former head of the American Immigration Lawyers Association who's now an adviser to immigrant-rights groups, even the fact that Roberts didn't ask many questions of Texas was a good sign: "He didn't ask Texas any questions about the merits. That shows he hasn't gotten past standing. If he thought they'd have standing, he'd have asked them about the merits."

Anthony Kennedy and Ruth Bader Ginsburg chatting during an official Supreme Court photo session. (Bill O'Leary/The Washington Post via Getty)

There's a lot of this sort of thing between oral argument and written decisions.

If this sounds a little like spin — conservative lawyers appeared much more willing to take the justices' questions at face value — consider the second factor: Oral arguments are far from the end of the process that goes into a Supreme Court decision. The justices now have two months to try to cobble together a five-vote majority on some legal aspect of the case: to tailor their arguments narrowly enough to attract the required number of justices, circulate draft opinions, persuade their colleagues to sign on, and (if necessary) repeat.

We know that Supreme Court justices can change their minds even relatively late in the process. That's what happened in 2012, when Chief Justice Roberts switched his vote — and therefore the court majority — to support the Obama administration and uphold the constitutionality of the individual mandate in the Affordable Care Act.

Arguably, the DAPA and DACA actions are as central to President Obama's second term as the Affordable Care Act was to his first. And arguably, the desire to avoid a 4-4 split on its biggest case of the term puts even more pressure on the court than usual to find a five-vote opinion.

Monday's oral argument certainly didn't indicate that it would be impossible for five members of the court to agree on United States v. Texas. It just indicated that it hasn't happened yet; and now the real work begins.

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