← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Contra Obama
00:33:21
Dahlia previews United States v. Texas – this week’s big immigration case – with Brianne Gorod of the Constitutional Accountability Center. She also hears from Sen. Al Franken about the latest in the standoff over Obama’s SCOTUS nominee, Merrick Garland.
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A
Amicus is sponsored by the Great Courses Plus, a new video service with thousands of lectures on dozens of topics. For a limited time, Amicus listeners can stream the modern political tradition Hobbes to Habermas and hundreds of other courses for free. Just visit thegreatcoursesplus.com amicus and by confirmation, the new HBO film that details the explosive 1991 Supreme Court nomination hearings of Clarence Thomas Confirmation premieres at 8pm tonight, April 16th on HBO. Welcome to Amicus Slate Supreme Court Podcast. I am Dahlia Lithwick and I cover the High Court for Slate. So this was a quiet week at the High Court. It was the second of a two week spring break away from oral arguments and so many court watchers have been focused on next week when the Justices.
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B
Are going to hear a great big.
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A
Case about President Obama's immigration policy. We've also continued to track the utter non progress of the effort to fill the vacant seat 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 Senator Al Franken, a member of the Senate Judicia 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. Remember that this is 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 USV Texas is Brianne Gorod. She's Chief Counsel at the Constitutional Accountability center and she co authored an amicus brief on behalf of a bipartisan group of former members of Congress who support the Obama administration side in this case. So welcome to Amicus. Brianne.
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C
Well, thank you for having me.
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A
Now, did I explain that?
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B
Okay.
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A
Do you want to set the table and take us back to 2014 and help us understand how we got to where we are today?
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C
Sure. And I think it's actually helpful to go back even further, 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, you know, 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 Congress has passed, should determine how best to implement those laws. And 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.
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A
And that largely just has to do with the idea that this is kind of an element of foreign policy, that the President is best situated to know what the facts are on the ground. Right. This is a lot of moving parts. And we say this is just something that of the branches, we think the executive is in the best possible posture to know what's going on and know what needs to be done. Is that right?
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C
That's absolutely right. You know, it touches on foreign policy, as you said, it touches on national security. It involves humanitarian concerns, which involves, you know, knowing what is going on in different countries on the ground. And that is why, you know, in these initiatives, you know, the President made a point of saying that, you know, we're going to prioritize, you know, 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 U.S. citizens or lawful permanent residents. You know, those are people that there's just no need for us to prioritize removing, particularly given that there are limited enforcement resources. I mean, it's worth noting that 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 when it comes to removal. And that's what he's doing in these initiatives.
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A
Okay, so now take us back and tell us about these suits. We have 25 states, mostly controlled by Republican legislatures, who all get on board and accuse the president of what specifically? Just massive overreach, way, way, way out of the boundaries of his executive prerogatives. And the substance of the suit is what? That he just does not have the authority to do the kind of executive action he had. Because why?
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C
So they say basically that these actions violate this federal law called the administrative procedure out. It sounds very wonky, but basically it's just the law that governs how administrative agencies, federal agencies operate. And they say that it violates it for basically two reasons. One, they say these initiatives are what's called arbitrary and capricious, that they violate the immigration laws that Congress has passed. And they also say that it violates what's called a notice and comment rulemaking requirement. This is a basic requirement that often applies to agency action that says, you know, when you are going to do something, you need to give the public notice about it, let people comment on it before you issue a final rule. But what's really important to know about that is that the Administrative Procedure act, that federal law expressly exempts from that requirement, general statements of policy. 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. And so the thrust of the case then is, you know, do these directives violate the immigration laws? Are they consistent with the immigration laws? And, you know, what the government has consistently argued, supported by, you know, amici, so friends of the courts, briefs from, you know, members of Congress, both current and former, from the business community, from faith leaders, from a whole host of people, is, you know, these directives are entirely consistent with the immigration laws because those immigration 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.
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A
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 immigration immigration policy and fix this. In other words, how do you answer the question that comes from the other side, which is this was never the president's business in the first place. This needs to be addressed systemically in Congress and Congress needs to do that.
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C
Yeah. So that's a common misperception of this case, obviously, pushed by the other side that, you know, 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. You know, these actions are not a substitute for comprehensive immigration reform. But the fact that Congress hasn't passed that reform doesn't do anything to alter the preexisting authority in the immigration laws that Congress has repeatedly passed over the years.
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A
And can you just tell us, Brianne, how this case gets its way all the way up to the US Supreme Court so quickly?
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B
Quickly.
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A
And how it is that the court is looking at an issue that has not yet gone to trial?
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C
Yeah, so this was brought in district court, and the district court entered what's called a preliminary injunction. So basically, we're not going to have a trial first. We're going to, you know, 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. And so the district court entered that preliminary injunction. It was then went to the 5th 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. But, you know, it's worth noting, it feels quick, to some degree, by, you know, legal standards, the law does often move quite slowly. But, you know, for folks who have been waiting to know whether these programs are going to go into effect, you know, 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, but because they were enjoined, because the district court blocked them, nothing has happened with them, and nothing can happen until we get this ruling from the Supreme Court.
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A
That's such an important point that I think folks don't realize that this, in effect, presses pause on this executive action. And so really, 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.
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C
That's right. And that's why I think it's, you know, so important that we get a majority ruling from the court. You know, obviously, since Justice Scalia passed away, there's been lots of talk of four. Four decisions, and 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 just 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. And so there's gonna be a lot of legal questions about what that means if we don't get a majority ruling out of the court this June.
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A
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.
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C
Sure. So standing is a constitutional doctrine. It governs whether a party can get into court at all. And it's important to understand, you know, 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. So an important part of standing is that the plaintiff in the case must have a legal injury. They must have a real injury that the courts can address. And so the major injury that Texas asserts here is that they provide subsidized driver's licenses to recipients of deferred action. And so 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. And the government's response to this is basically, you choose to subsidize these driver's license. That is a, that is a voluntary choice on your part. You can't manufacture this kind of injury to get into court. And I think what's really interesting at argument is to focus on and listen to what questions the Chief justice in particular asks about standing. You know, 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. And I think, you know, those past votes of the Chief are particularly important because the Chief justice is also really concerned about politicization of the courts. 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. So, you know, when more liberal state officials try to get into court, he's got a strict closed door policy. But when conservative state officials want to get into court to challenge President Obama's immigration actions, he throws the courthouse doors wide open. I think that's the last thing he would want. So I think there's a really good chance that Chief Justice Roberts may not reach the merits of this case at all.
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A
And can you help us understand, 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 in terms of standing doctrine generally?
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C
So 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. You know, that's a major argument that the government has been making in this case. And, you know, one reason why I think we may see a lot of discussion of standing and the courts passed standing decisions and trying to understand how this case is different than those past cases.
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A
Brianna, I want to ask you to help listeners contextualize what all this means in terms of something you suggested earlier, which is that we're just at a moment where the court looks really partisan, the country looks really partisan. We are seeing appeals of this sort from Republican governors and Republican states. This feels to me like one of those lawsuits that is alleged alleging Barack Obama has gone crazy and all he wants to do is seize power and he's King George. And this is nuts. And it seems like it's of a piece with this larger sensibility we're having right now 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?
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C
I think that's right. I mean, it's hard not to understand this lawsuit, you know, brought, as you said, by Republican state officials, you know, supported by Republicans in Congress as anything more than, you know, political objections to policies that they don't like. I mean, 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. 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. And 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. And 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.
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A
Brianne Gorod is chief counsel at the Constitutional Accountability center, and she 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.
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C
Well, thank you for having me.
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A
Now, this is the part of the show where I tell you about the first of our terrific sponsors. And as you know, I'm a huge fan of the Great Courses. So I'm excited to tell you about their new video learning service called the Great Courses Plus. And they're giving amicus listeners an opportunity to stream their popular course, the Modern Political Tradition, Hobbes to Habermas and hundreds of other courses absolutely free. The Modern Political Tradition Habs to Habermas is a fascinating new look into the way political theorists over the last few centuries have approached the question of how a state is best governed, examining all kinds of fundamental questions like the ones we examine on this show that have to do with freedoms and rights and the state. With the Great Courses plus, you can watch as many different lectures as you want anytime, anywhere on all sorts of devices. Now the Great Courses plus is offering listeners of amicus a chance to stream hundreds of their courses, including the Modern political tradition, a $335 value for free when you go to the great courses plus.comamicus that's thegreatcoursesplus.comamicus and now onto 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. Now, this week, Grassley invited Barack Obama's nominee, Merrick Garland to a lovely sit down over breakfast Eggs were eate 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 up 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. Senator Al Franken, it is a pleasure to welcome you to Amicus.
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D
Well, thank you, Dahlia. Pleasure to be with you.
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B
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 name was put forth? Is it just a micro conversation about the larger conversation about Garland, or are you guys relitigating whether Obama should have made this nomination in the first place?
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D
Well, basically what's happened is on Thursdays we tend to have what are called business meetings or executive sessions where we're not doing hearings, but we're, you know, marking up legislation and passing it or not passing it or voting on nominations, voting them out of the committee or not. And the last couple weeks has just been arguing about this. And the last time we had this kind of meeting, I got very frustrated because I show up early to these things and I get, you know, help get quorum and then I sit through a lot of my colleagues who come and go and, and that particular day we had a lot of Republican colleagues who would kind of 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. So there was a lot of stuff like we should let the voters decide. And you know, my argument has been we did. The voters did decide. They elected President Obama. They reelected him in 2012 to a four year term. And I repeatedly say that scientists tell us there are about 10 months left, or when scientists told us there was 11 months left, I said that in the term. But nevertheless, they'll say let the people decide. Then they started saying, a couple of my colleagues would say, but if the Democrats win, then we might be willing to take up Garland in a lame duck. And so I was saying, okay, let me get this straight. So in other words, let the people decide unless they decide the wrong thing. And I think I did it with the right tone. I didn't show exactly how angry and frustrated I was. I more did it in a very statesmanlike, measured way.
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B
We're gonna play a little audio of that same executive session. This is you going back and forth with Orrin Hatch about whether this begins with Bork. And I think Hatch's implication in that kind of back and forth with you, Senator Franken, is that, well, you all started it when you Borked Bork. And your response is, well, wait, Bork got a hearing, right?
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D
I'm saying, listen, I was in the job of identifying absurdity during Judge Bork's hearings. And so for you to say to me that Judge Bork didn't get hearings, I don't know what I was watching.
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A
No, I didn't say that.
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D
Yes, you did. No, I just said. You said, yes, you did, sir. I meant to say that's where it all began. That's not what you said. I said Supreme Court. Supreme Court nominees have gotten hearings for the last 100 years, since 1960. Then he kind of reversed himself and said, well, this is where it all started on the Borking. And he said he was one of the great, you know, legal minds of our time. And I might argue with that. I mean, Bork famously thought this 1964 Civil Rights act was unconstitutional, among other things that came out in this hearing.
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B
Senator, I wonder if you can just follow up on something else that came out in that executive session, which is everybody agrees, and I think you've said this, and we've heard Republicans say it on the other side, that Garland is a pretty mainstream nominee. I mean, 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. So isn't there something a little bit false about likening this to a Borking? I mean, this is somebody who is not by any stretch of anyone's imagination, an extreme nominee.
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D
Well, among the other things that people didn't like and that senators didn't like about Bork was sort of his lack of judicial temperament. And everyone who I know who knows Garland said that this guy is stellar in that regard. You know, no one, I haven't heard anyone who has a bad thing to say about this guy. You know, it's interesting. The White House, when you're on the Judiciary Committee, 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, and I think 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.
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B
Do you mind telling us a little bit, Senator Franken, about your meeting with Merrick Garland? I know you sat with him and had your courtesy meeting. It was one of the first.
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A
Do you want to tell us how.
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B
You felt coming out of that, what you talked about?
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D
Yeah, well, 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. I said, you're known as someone who tries to reach consensus, and how do you do that? And 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 consumer contracts and unemployment contracts that I think is overused and keeps people from getting justice. And we discussed a few issues. He didn't commit himself in any improper way at all. He was very impressive.
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B
I guess the last thing I want to really ask you about is, you know, Senator Grassley recently made a bunch of comments on the Senate floor that more or less took aim at John Roberts himself and said, you know, 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, you know, 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. And John Roberts point, I think, was saying this has become too political. Senator Grassley came roaring back at him and said, you know, who made this political?
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D
You.
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B
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 this 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.
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D
Well, I wish it weren't. And that's why the Garland selection, I think was sort of the perfect selection, especially for this moment. You know, 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. So there's a lot of ironies going around here. And you know, there's so many, five, four decisions and five, four decisions that basically made it harder for people to get into the courtroom and that, you know, the Voting Rights act had to be one of the most activist political decisions. I mean, I don't agree with Grassley on much of this and he's kind of right in a 180 degree wrong way.
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B
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 mean, 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 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?
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D
Oh yeah. But I mean, just because it matters with wonks like you and doesn't matter to so many 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, you know, 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, of whether we're going to actually have hearings. You know, there's, there seems to be a lot of pressure from moneyed interests 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. I mean, we, you know, this was a vacancy caused by a death. 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.
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B
Senator Al Franken represents the state of Minnesota and the United States Senate and he also serves on the US Senate Judiciary Committee. Senator Franken, thank you very much for your time this morning.
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D
Oh, thanks Dahlia. Good talking to you.
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A
Our second ad today comes from hbo. Kerry Washington stars as Anita Hill in the new HBO film Confirmation. The film details the explosive 1991 Clarence Thomas Supreme Court nomination hearings which brought this country to a standstill and forever changed the way we think about sexual harassment victims rights and modern day race relations. Confirmation also explores what happened when the cameras were not rolling and highlights the parallels between Hill and Thomas. Also starring Wendell Pierce as Clarence Thomas. Confirmation premieres at 8pm tonight, April 16th on HBO. And that is going to do it for this week's episode of Amicus. Remember that you can share this episode with others directly from our show page. That's slate.comamicus and you should know that all of our past shows are available to there as well. If you're a Slate plus member, you can always access show transcripts on that page. And if you're not a Slate plus member, you can sign up for a free trial membership@slate.com amicusplus we've said it before, we'll say it again. We love to hear what you think about this or any other episode. We are loving your suggestions for future shows and you can always write us@amicuslate.com we really love and appreciate your letters. Hey, we also love the reviews you leave on our itunes page, so keep them coming. Just search Amicus in the itunes store and click the Ratings and Reviews tab. And thank you for that. Thanks as always to the Virginia foundation for the Humanities where our show is taped. Our producer is Tony Field. Steve Lichtai is our executive producer. Special thanks do go out this week to Jamal Milner, Zach Dinerstein, and Mickey Capper, who helped with all the the engineering. The Chief Content Officer for Panoply is Andy Bowers. Amicus is part of the Panoply Network. Check out our entire roster of podcasts@itunes.com Panoply I am Dalia Lithwick and we'll be back with you soon for another edition of Amicus.
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D
Send the poets Vulnerable people, not invulnerable drones.
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E
That was poet Sol Williams with his radical suggestion for dealing with isis. I'm Jason Gotts, host of Think Again, a big Think podcast. Each week we surprise smart people with topics they're not prepared to discuss. Salman Rushdie on astrophysics. Jesse Ventura on alien life forms. Find us on itunes, Spotify, or wherever you're listening. Think Again. It's deep fun.