This past week was the first week of the April argument session — the third since the death of Justice Scalia and the last of this term.  Next week will be the last three argument days of the term (with the last argument concerning the conviction of Former Governor Bob McDonnell of Virginia — with the primary issue being which type of  “favors” by a government official will support a conviction under the statutes involved).  After Wednesday, the remainder of the term will be issuing opinions and accepting cases for next term.  This week was bookended by two cases of interest to the issues covered by this site.  On Monday, the Supreme Court heard arguments on President Obama’s decision to defer deportation of certain unauthorized immigrants.  On Wednesday, the Supreme Court issued its opinion on the Arizona redistricting plan.

The issues in the case challenging the President’s immigration policy falls into three categories:  1) do the States have “standing” (the right to bring the case); 2) was the policy guidance the type of the decision that had to go through the formal notice and comment procedures of the Administrative Procedure Act (the rules governing the issuance of formal regulations); and 3) are some elements of the policy so contrary to immigration law as to constitute a violation of those laws rather than the operation of executive discretion in the enforcement of the law).  As shown by the transcript of the argument, the majority of the argument focused on the issue of standing.

Standing is a key concept in the law tied to the constitutional requirement that courts only decide “cases and controversies.”  The basic principle is that a person can only file a law suit if they are in some way “injured” by the action that they are challenging.  Thus, while you might not like the microbrewery in your town selling out to a big conglomerate, you do not have standing to challenge that merger unless you own stock in one of the two or can somehow demonstrate how that sale effects a legally-recognized interest that you have.  Traditionally, states have a right to sue on things that adversely impact their governmental interests, but do not have the right to sue because the voters of their state disagree with a decision.  When multiple parties join together in a case, the case can continue as long as one of them has standing.  In recent years, the conservative majority on the Supreme Court have taken a narrow view of standing — one of the many doctrines that conservatives have used to keep cases out of court.

In the immigration case, of the twenty-six Republican-controlled states in the case, Texas appears to have the best argument for standing.  Texas claims that Texas law requires the state to give driver’s licenses to individuals with “deferred” deportation status and, thus, that the new policy will require them to issue licenses to these individuals.  Texas also claims that the fee charged for licenses covers only part of the expense of issuing licenses — a typical financial harm argument for standing.  A substantial amount of the argument focused on whether this harm was self-inflicted (and therefore not a basis for standing) or if some other legal principle (mainly equal protection and preemption) would bar any future attempt to change this policy.

Amazingly, by the time this case reached the Supreme Court, the states had conceded that the President had the authority to set deportation priorities and to defer deportation of certain classes of deportable immigrants.  Instead, the issue focused on whether immigration law permitted the President to grant permission for these individuals to legally work in the United States — whether these persons can be both lawfully present for some purposes and not lawfully present for other purposes.  This hybrid status caused a lot of confusion in the oral argument.

It is hard to predict how this case will come out.  A 4-4 tie leaves the temporary injunction in place.  (The trial court has not yet heard the case on a permanent injunction.)  However, it is likely that the Supreme Court will address the merits of the permanent injunction.  Half of the court would likely want to uphold the president’s policy on the merits.  The other half of the court would normally want to narrow standing.  It is probable that the easiest way to get a majority opinion would be for the “liberal” justices to agree that the states lacked standing — probably explaining why the decision last decade allowing states to challenge the EPA is a special situation based on the unique provisions of certain environmental laws.

The Arizona case involved the actual state legislative district lines drawn by the redistricting commission in Arizona.  (Readers may remember that last year, the Supreme Court upheld the validity of the Arizona voters delegating the authority to draw congressional district lines to the commission.)    Republicans had challenged these lines because the “lean Democratic” districts were slightly smaller than the “lean Republican” districts.  In past opinions, the United States Supreme Court had both suggested a safe harbor of a 10% deviation in population and that states had the obligation to draw lines as equal as possible but could justify unequal populations based on certain legitimate considerations.   In a unanimous opinion, the Supreme Court upheld the lines finding that — as long as the deviation fell within the safe harbor — the district lines are presumptively valid and the burden of proving improper considerations motivated the lines rests on the challengers.

In this case, while the challengers claimed that the lines were drawn in an improper partisan gerrymander, the lines could also be justified as an attempt to comply with the Voting Rights Act (reducing the size of potential minority influence districts by moving whites into other districts to assure enough minority influence districts) in an effort to gain preclearance under Section 5.  While Section 5 has subsequently been invalidated, preclearance was required at the time that the commission drew the lines, and the Supreme Court found that the commission could have legitimately concluded that its adjustments to the map were necessary to gain preclearance and that such a consideration was a proper justification for not drawing more equal districts (or more accurately, accepting a revised plan that was less equal than the original plan).  In an aside, the Supreme Court noted the overlap between race/ethnicity and partisan identification made it difficult to determine if the plan was drawn for partisan advantage or to take into account the Voting Rights Act.

While this result is good for Democrats in Arizona, it is neutral in the long-term as most election law decisions are.  This decision gives a little more wiggle room to the states in drawing lines (at least under the equal protection clause).   In some states, that wiggle room will be used to favor Republicans.  There is still one more redistricting case waiting a decision.  These cases unfortunately show how long it takes for these redistricting cases to work out.  If Democrats keep the White House, we need to resurrect Section 5 of the Voting Rights Act as soon as possible.  Section 5 forces a prompt decision on the new lines.  Section 2 and equal protection claims take years to litigate, leaving the problematic redistricting plans intact for two or three election cycles.