The vanishing constitutional issue in United States v. Texas

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at why the Supreme Court was silent on the Take Care Clause in Monday’s immigration arguments. From the time that 26 states launched their courthouse effort to block enforcement of President Obama’s ambitious shift in immigration policy, their lawyers have wanted to rescue a part of Article II from relative constitutional obscurity. It is the “Take Care Clause,” which tells the nation’s presidents that they are to “take care that the laws be faithfully executed.”  The Clause has not often been interpreted by the Supreme Court, so it still is not clear to whom presidents owe a “faithful” duty, or how failure to do so would be defined.

Bringing that claim into the case, the lawyers seemed to believe, would lift their case out of the tangled web of administrative law and give it a higher profile, even a historic one.   In fact when state officials in Texas announced their lawsuit in December 2014, shortly after the new policy was unveiled, their emphasis fell heaviest on the Take Care Clause feature of their case.

Greg Abbott, then the state’s attorney general who would soon become governor, told reporters that “the president’s unilateral executive action tramples the Constitution’s Take Care Clause and federal law. The Clause limits the president’s power and ensures that he will faithfully execute Congress’s laws – not rewrite them under the guise of ‘prosecutorial discretion.’”

Texas, together with 25 sister states, pressed that point in two lower courts in their challenge to the 2014 initiative that the Obama administration took to delay the deportation of perhaps four million undocumented immigrants who, as law-abiding folks with roots in their communities, are a low priority for being sent out of the country.  However, neither of those courts ruled on that issue, finding a narrower basis in procedural law for their temporary order against enforcement of the policy.

When the case moved on to the Supreme Court, in an appeal by the federal government, the states stepped in to urge the Justices to add their Take Care Clause argument to the mix.  In something of a surprise, the court agreed to do so when it took on the case in January.   The court seldom accepts review of a constitutional issue not previously decided in lower courts.   The court, as is its custom, did not explain why it was – or could be – interested in that constitutional point.

Yesterday, that case – United States v. Texas – was examined by the Justices in a 92-minute hearing.  But not a word was said, by eight Justices or four lawyers, about that aspect of the case.

In fact, there was a great deal of talk about the Constitution – about Article III, and its curb on the authority of courts to hear merely hypothetical legal claims, and not Article II’s admonition to presidents to faithfully carry out the laws passed by Congress. Federal courts, under Article III, can only rule on live “cases or controversies,” meaning cases where the complaining entity or individual has a genuine legal grievance, not a hypothetical complaint.

No one doubts that there is a live controversy over the Obama policy, but it is, at its core, a political controversy over how to make and carry out policy to deal with the undocumented immigrant situation in America.  The Justices no doubt are aware of the controversy in the political realm, but the issue in which they were the most strongly interested was whether this case belongs in the federal courts at all.

If it does turn out that there is a majority for one position or its opposite on the Article III question, that could be decisive.   A decision that the challenging states lack Article III “standing” to sue would abruptly end their case, completely, and the Obama policy would have survived.  If, however, there were a majority supporting the states’ right to proceed in court, that would force the court to move on then to the procedural law questions – and, if it were interested, in the Take Care Clause point.

It very quickly became abundantly clear, at least as the court pored over the Article III dispute yesterday, that there are four Justices who are not at all persuaded that Texas and its sister states do have a live legal grievance (constitutional or otherwise) with the Obama policy.  And it was equally clear that at least two of the conservative members – Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. – are at least attracted to the idea that the states do have a legitimate legal complaint.

That, of course, adds up only to six Justices.   Of the other two, Justice Anthony M. Kennedy said almost nothing about Article III, and Justice Clarence Thomas maintained his usual silence, throughout.

If it should turn out that either Kennedy or Thomas were to join with the court’s four liberal Justices, then the states’ lawsuit would be at an end.

But if Kennedy and Thomas were to join with the Chief Justice and Alito to permit the state lawsuit to go forward to a decision on its legality, the court could well be split 4-to-4.   That would leave in place the lower court decision that the states did have the right to pursue their lawsuit, and the Justices would then move on to assess the legality of the policy under the  federal Administrative Procedure Act and, maybe, under the Take Care Clause.

In that event, would the court fulfill the states’ desire to produce a ruling on whether Obama had faithfully executed his constitutional duty?  (Needless to say, perhaps, a ruling that the president had not done so would be a momentous decision, and, of course, it would reverberate as a political issue, too, especially in this presidential election year in which immigration is a front-and-center issue.)

However, the Take Care Clause question would not be guaranteed an answer. It is a deeply ingrained tradition that the court will not decide a constitutional issue if it can base a decision on anything else that is credible.   The problem for the states, in the case of United States v. Texas, is that a ruling based on procedural law could be the end of the case.

If the court were to declare that the law does violate procedural law, there would then be no need to decide the Take Care Clause issue.  But if it were to find that the law does not violate procedural law, which in this instance is closely tied to what the immigration laws now on the books say, then the faithful execution question might lose its significance altogether.

One lesson, of course, is that lawyers can decide how they want to put their cases together, including whether to throw in a constitutional question, but they cannot be sure that the courts will provide the answer that they seek.