Some legal experts say his conservative views about access to the courts could tilt the Supreme Court’s immigration case in Obama’s favor.

By Sam Baker

The Obama ad­min­is­tra­tion and its al­lies are angling for an­oth­er elec­tion-year re­prieve from Su­preme Court Chief Justice John Roberts—this time, on im­mig­ra­tion.

The high court will hear or­al ar­gu­ments next week in a chal­lenge to Pres­id­ent Obama’s ex­ec­ut­ive ac­tions on im­mig­ra­tion, and some lib­er­al leg­al ex­perts be­lieve that the ad­min­is­tra­tion has a good shot at win­ning Roberts’s vote.

Roberts’s sup­port is hardly a giv­en, and an elec­tion-year de­cision in fa­vor of Obama’s im­mig­ra­tion or­ders—a rul­ing that would come al­most ex­actly four years after Roberts cast the de­cid­ing vote to save Obama­care—would surely en­rage con­ser­vat­ives.

But the Justice De­part­ment has fo­cused in­tensely on ar­gu­ments that seem right up his al­ley, ar­guing that the 26 states chal­len­ging Obama’s im­mig­ra­tion ac­tions do not have the leg­al stand­ing to bring the case—and that al­low­ing it to pro­ceed would thrust the courts in­to an end­less mor­ass of ticky-tack polit­ic­al dis­putes between states and the fed­er­al gov­ern­ment.

The states, though, have laid out their own road for Roberts, of­fer­ing up an easy way for the chief justice to rule against the White House on nar­row grounds that would block Obama’s ac­tions from tak­ing ef­fect but would not ne­ces­sar­ily stop the next pres­id­ent from at­tempt­ing something sim­il­ar—even if that pres­id­ent is a Demo­crat.

With only eight justices on the Court, the White House would only need to pull away the vote of one Re­pub­lic­an ap­pointee—most likely, Roberts or Justice An­thony Kennedy—to win the case.

“I think they’re both really in play for the ad­min­is­tra­tion,” said Bri­anne Gorod, chief coun­sel at the lib­er­al Con­sti­tu­tion­al Ac­count­ab­il­ity Cen­ter. “I think the chief in par­tic­u­lar be­cause his views on stand­ing, and his views that stand­ing should be in­cred­ibly lim­ited, have been so strongly stated and so con­sist­ently stated.”

Big cases of­ten come with a de­bate over one party’s stand­ing, but that dis­pute is es­pe­cially poin­ted in the im­mig­ra­tion case. The Justice De­part­ment has de­voted at least half the space in its writ­ten briefs to an ag­gress­ive ar­gu­ment that the states can­not chal­lenge fed­er­al im­mig­ra­tion policy in court.

“Al­low­ing claims like those re­spond­ents press here to pro­ceed would upend the con­sti­tu­tion­al design by en­mesh­ing the courts in all man­ner of dis­putes between the fed­er­al gov­ern­ment and a State, or com­pet­ing fac­tions of States, over im­mig­ra­tion policy,” the Justice De­part­ment wrote.

Some leg­al ex­perts say that ar­gu­ment might be more likely to ap­peal to Roberts than to Kennedy.

Broadly, Kennedy has a repu­ta­tion for em­bra­cing the op­por­tun­ity to de­cide big leg­al ques­tions, while Roberts fre­quently tries to avoid them. And Roberts is of­ten wary of open­ing the courtroom doors fur­ther than he thinks is ne­ces­sary.

To es­tab­lish stand­ing, the states must es­tab­lish that they would suf­fer an “in­jury” from Obama’s im­mig­ra­tion policies. That in­jury, they say, comes in the form of a fin­an­cial bur­den that they would face if mil­lions of un­doc­u­mented im­mig­rants are al­lowed to leg­ally re­main in their states. Texas pays par­tic­u­lar at­ten­tion to the costs it would bear from is­su­ing driver’s li­censes to those work­ers, be­cause the state sub­sid­izes the cost of a li­cense for many im­mig­rants.

But if states can chal­lenge every change in fed­er­al policy that has a ripple ef­fect on their budgets, the courts will end up ad­ju­dic­at­ing state-fed­er­al dis­putes over everything from im­mig­ra­tion policy to the fed­er­al for­mula for cal­cu­lat­ing poverty. And that would thrust the courts in­to a polit­ic­al role that Roberts might prefer to avoid.

Ilya Sha­piro, a Cato In­sti­tute leg­al ex­pert who worked on a brief op­pos­ing the ad­min­is­tra­tion’s im­mig­ra­tion ac­tions, agreed that ques­tions about stand­ing could swing the case in the gov­ern­ment’s fa­vor.

“It’s prob­ably the easi­est way to avoid a 4-4,” he said.

If the briefs in the case are any guide, the justices will likely spend a lot of time dur­ing next week’s ar­gu­ments on stand­ing be­fore turn­ing to a pair of ques­tions about the mer­its of Obama’s ac­tions: wheth­er they vi­ol­ated the pres­id­ent’s con­sti­tu­tion­al duty to “take care that the laws be faith­fully ex­ecuted”; and wheth­er the ad­min­is­tra­tion vi­ol­ated the Ad­min­is­trat­ive Pro­ced­ure Act by is­su­ing the new policies without a no­tice-and-com­ment peri­od.

Leg­al ex­perts on both sides of the is­sue be­lieve that the APA is a much more likely vehicle to rule against the ad­min­is­tra­tion. The Court has hardly ever ruled on the mean­ing of the “take care” clause, and hardly any­one ex­pects it to wade in­to a new con­sti­tu­tion­al ques­tion with a case that’s this polit­ic­ally sens­it­ive.

Roberts of­ten de­liv­ers nar­row rul­ings that, at least tech­nic­ally, leave the polit­ic­al branches’ op­tions open. And rul­ing that Obama should have used no­tice-and-com­ment rule­mak­ing for the im­mig­ra­tion rules would be one way to do that. It might even al­low a Demo­crat­ic suc­cessor to pur­sue a sim­il­ar im­mig­ra­tion policy—al­beit through a more time-con­sum­ing pro­cess.

“That, I could see as a Roberts opin­ion,” Sha­piro said.