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01/22/2016

Marty Lederman on Texas v. United States (Updated)
Michael Ramsey

At Balkinization, Marty Lederman says the "take care" issue in Texas v. United States is a non-issue:

Texas's nominal constitutional argument (as stated in its brief in opposition) is that DAPA [the immigration non-enforcement policy] is "'incompatible with the expressed or implied will of Congress,' where the '[President’s] power is at its lowest ebb'” (quoting from "Category 3" of Justice Jackson's celebrated Youngstown concurrence), because authorizing DAPA aliens to be employed is--according to Texas--"directly contrary to Congress’s will as expressed in the INA’s reticulated work authorization scheme."

But if the DHS Secretary's interpretation of the immigration laws--that they authorize him to afford the work authorization at issue here--is incorrect, as Texas alleges, that would simply mean that there's merit to Texas's side of an ordinary statutory interpretation dispute.  There is no independent constitutional issue in the case--at least, no more so than there is whenever anyone challenges the executive's interpretation of its statutory authorities, something that occurs every day.  The Secretary here purports to act pursuant to statutorily delegated discretion, relying upon a determination that the Reagan Administration made, after notice and comment, back in the 1980's.  Texas, by contrast, denies that Congress has conferred such authority--it insists that the agency has been acting upon an improper reading of the statute for more than 30 years.  And thus what is at stake is simply a question of statutory interpretation, about the nature and scope of the discretion that Congress has conferred upon the Secretary of DHS.  Dressing this up as a "Take Care" argument does not change it, or shed any further light on it.

Or as he puts it in conclusion, 

... [T]he Court will not, in any event, have any reason to reach the so-called "take Care" question.  If it rules that ... the Secretary lacks the statutory authority to confer "deferred action" status and/or work authorization to the class of aliens in question, then the case will be over, without resort to Texas's constitutional claim:  the government will not be able to implement DAPA.  But if, on the other hand, the Court rules that the Secretary has acted within his statutorily conferred authority, then the laws will have been properly executed, which would preclude the predicate for Texas's "take Care" argument.

This all sounds right to me, although enough people seem to be thinking of it as a take care clause case that I wonder if I am missing something.  One key assumption in the above analysis is that the President is relying only on statutory authority, not on independent constitutional authority.  But if that assumption is right, it does seem like the case is just one of statutory interpretation.

UPDATE:  Nicholas Quinn Rosenkranz sees it as a constitutional issue here.