Amicus with Dahlia Lithwick | “Contra Obama”

Episode Date: April 16, 2016
Host: Dahlia Lithwick
Guests: Brianne Gorod (Chief Counsel, Constitutional Accountability Center); Senator Al Franken (D-MN, Senate Judiciary Committee)

Episode Overview

This episode of Amicus centers on two major legal and political dramas unfolding in the spring of 2016:

1. The Supreme Court’s looming decision on President Obama’s sweeping immigration actions (United States v. Texas).
2. The ongoing political battle over the stalled Supreme Court nomination of Judge Merrick Garland, following the death of Justice Antonin Scalia.

Through conversations with constitutional lawyer Brianne Gorod and Senator Al Franken, the episode explores the legal questions, historical context, and deep partisan tensions driving these stories at the heart of the American judiciary.

Key Topic 1: United States v. Texas – Obama’s Immigration Action Before the Supreme Court

Background and Legal Dispute

• Obama’s 2014 Executive Action:
  Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA) would allow up to 4.9 million undocumented immigrants to remain and work in the U.S.

  • “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.” — Dahlia Lithwick [01:41]

• Legal Challenge:
  Republican-led Texas and 24 other states sued to block DAPA/DACA, arguing presidential overreach and violation of administrative law.

  • They assert Obama’s action is “massive overreach, way, way, way out of the boundaries of his executive prerogatives.” — Dahlia Lithwick [05:24]

• Central Legal Questions:

  • Does the President have unilateral authority for these immigration actions?
  • Do states have standing to sue the federal government over such executive measures?

Historical and Legal Context

• Presidential Discretion:

  • “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.” — Brianne Gorod [03:04]

  • Immigration enforcement has always necessitated executive discretion due to limited resources and changing national needs, touching on national security, foreign policy, and humanitarian concerns:

    • “There are roughly 11 million undocumented individuals in the country today, and Congress has not appropriated enough money to remove all of those individuals. So the president necessarily has to make decisions about which individuals to prioritize.” — Brianne Gorod [04:17]

• Administrative Procedure Act (APA) Claims:

  • States claim Obama violated the APA by issuing policy without proper rulemaking (‘notice and comment’).
  • Gorod counters that these directives are “general statements of policy,” exempt under the APA. [05:57]

• Critique of “King Obama” Narrative:

  • “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.” — Brianne Gorod [08:04]

• Why the Supreme Court Is Intervening Now:

  • The dispute has led to a national injunction, paralyzing DAPA and expanded DACA until the justices rule.
    • “These programs were supposed to have gone into effect well over a year ago, ... but because they were enjoined, ... nothing can happen until we get this ruling from the Supreme Court.” — Brianne Gorod [09:52]

Standing: Who Gets to Sue?

• Question of Standing:

  • “Standing is a constitutional doctrine. It governs whether a party can get into court at all.” — Brianne Gorod [11:09]
  • Texas says its subsidized driver’s licenses for immigrants would raise costs—a claimed injury.
  • The federal response: Texas chooses to subsidize licenses and cannot manufacture standing.

• The Roberts Factor:

  • “Chief Justice Roberts has been a consistent vote to limit parties' abilities to sue in case after case. ... I think there's a really good chance that Chief Justice Roberts may not reach the merits of this case at all.” — Brianne Gorod [12:04]

• Implications if Standing is Granted:

  • “It would basically invite states to go into court whenever they have any disagreement with federal policy, ... bringing them into all kinds of political disputes.” — Brianne Gorod [13:41]

Politics, Partisanship, and Precedent

• Historic Bipartisanship — Now Upended:
  • “Programs like this have been utilized by presidents of both parties going back to the Eisenhower administration. ... [They] should have been entirely uncontroversial. But ... this seems like just another effort to get the courts involved in what is essentially a political and policy dispute.” — Brianne Gorod [15:12]

Key Topic 2: The Garland Nomination — Supreme Court Vacancy Standoff

Judiciary Committee Dynamics

• Republican Refusals:
  Senate Judiciary Chairman Chuck Grassley and other Republicans, after meeting with Judge Garland, continue to refuse hearings or votes.

  • “Other Senate Republicans remain mostly in lockstep behind Grassley and that has most of their Democratic colleagues up on the Hill good and steamed.” — Dahlia Lithwick [17:57]

• Inside the Committee — Senator Franken’s Frustration:

  • Franken describes business meetings dominated by repetitive, contradictory arguments:
    • “‘Let the voters decide.’ ... My argument has been we did. The voters did decide. They elected President Obama. They reelected him in 2012 to a four year term.” — Al Franken [19:21]
    • “Let the people decide unless they decide the wrong thing.” — Al Franken [20:52]

The Bork Precedent Debate

• Historical Analogies and Misrepresentations:
  • Senator Orrin Hatch suggests the conflict began with the 1987 “Borking” of Judge Robert Bork.
  • Franken responds:
    • “So for you to say to me that Judge Bork didn’t get hearings, I don’t know what I was watching.” — Al Franken [22:00]

Is Garland Really “Like Bork”?

• A Mainstream Nominee:
  Both sides admit Garland is not a radical choice:

  • “Everyone who I know who knows Garland said that this guy is stellar in that regard. ... No one, I haven’t heard anyone who has a bad thing to say about this guy.” — Al Franken [23:39]

  • “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’s exactly what Garland is and would be if we have the hearings.” — Al Franken [24:32]

Garland’s Style and the Lost Opportunity

• Personal Impressions:
  • “He sort of came again. I know people know him. And nothing in my meeting with him was in any way different than what I had heard. ... He was very impressive.” — Al Franken [25:11]
  • Garland values consensus, honesty, narrow decisions, and did not commit to outcomes.

Politicization of the Courts

• Grassley vs. Roberts:

  • Grassley publicly admonishes Chief Justice Roberts for criticizing the politicization of confirmation hearings.
  • “You made this political. The Court has inserted itself into politics.” — summarized by Dahlia Lithwick [27:00]

• Franken’s Irony:

  • “The Roberts court has been a very conservative, activist, pro corporate court and I’m certainly not alone in that. So there’s a lot of ironies going around here.” — Al Franken [27:30]
  • “I don’t agree with Grassley on much of this and he’s kind of right in a 180-degree wrong way.” — Al Franken [28:25]

Does the Public Care?

• Franken’s Take:
  • “They may not know how it does, but you obviously follow the Court and understand how it does affect people. ... this stuff is, you know, absolutely essential and hugely important.” — Al Franken [29:07]
  • “No one dies to game the system. ... this is wrong.” — Al Franken [29:55]

Notable Quotes and Memorable Moments

• On Expanding Standing:

  “It would basically invite states to go into court whenever they have any disagreement with federal policy, ... bringing them into all kinds of political disputes.”
  — Brianne Gorod [13:41]

• On Politicized Confirmation Battles:

  “Let the people decide unless they decide the wrong thing.”
  — Al Franken [20:52]

• On Merrick Garland:

  “Everyone who I know who knows Garland said that this guy is stellar in that regard. ... No one, I haven’t heard anyone who has a bad thing to say about this guy.”
  — Al Franken [23:39]

• On the Continuous Shift in the Supreme Court’s Perception:

  “I think it’s important to remember that, you know, these actions, I think a decade ago, you know, would not have been controversial at all.”
  — Brianne Gorod [15:12]

• On Systemic Harm:

  “No one dies to game the system. This is not, you know, so I think this cuts in a bad way for Republicans, but I think it’s just bad for our system.”
  — Al Franken [29:55]

Timestamps for Key Segments

| Timestamp | Segment | |-----------|---------| | 00:54 | Preview of United States v. Texas immigration case | | 03:04 | Gorod on the president’s decades-long immigration discretion | | 05:24 | States’ legal arguments against Obama’s actions | | 09:52 | The injunction and delays in DAPA/DACA implementation | | 11:09 | Standing: Technical breakdown and Chief Justice Roberts’s influence | | 13:41 | Implications of expanding standing for states | | 15:12 | Partisan context and historical precedent | | 18:53 | Start of Senator Al Franken interview | | 19:21 | Judiciary Committee dynamics and “let the voters decide” | | 22:00 | Bork hearings historical discussion | | 23:39 | Garland as a mainstream, consensus nominee | | 25:11 | Franken on his personal meeting with Garland | | 27:00 | Grassley’s criticism of Roberts and politicization | | 29:07 | Does the public care about the Supreme Court deadlock? | | 29:55 | Systemic consequences of the vacancy |

Tone and Style

The episode is conversational but sharply analytical, blending legal detail with political context and a touch of dry humor, especially from Franken’s side. Dahlia Lithwick maintains a balance between accessible explanation and incisive questioning.

Summary Takeaways

• The Supreme Court’s handling of Obama’s immigration actions raises major questions about presidential power, administrative law, and whether states have standing to challenge executive policies they politically oppose.
• The bitter partisan fight over Judge Garland’s stalled nomination reflects and exacerbates the politicization of judicial processes.
• Both guests argue that what once was bipartisan, ordinary practice in both immigration policy and judicial nominations has become highly polarized in the current climate.
• Franken and Gorod both emphasize the broader systemic risks: confusion, policy gridlock, and loss of public trust in both the courts and the legislature.

For listeners interested in the Supreme Court, presidential power, and the fraught intersection of law and politics in 2016, this is a clear, in-depth, and lively episode of Amicus.