An extra question posed by the justices weighing a challenge to Obama’s immigration program could turn the case into a constitutional showdown.

By GARRETT EPPS

The state of Texas and its traditional enemy, the United States government, both got a small surprise on Tuesday, when the U.S. Supreme Court granted review in the state’s challenge to the Obama administration’s program of “deferred action” for certain categories of undocumented immigrants.

The grant wasn’t surprising. Lower courts had put the new policy—one of President Obama’s major policy moves—on hold since last February. But the Court broadened the questions before it in a way that could, at least in theory, turn the dispute over the immigration order into a constitutional showdown.

Up until now, United States v. Texas hasn’t been a constitutional case; it’s been a much more ordinary disagreement over how to read the Immigration and Nationality Act. Since 2012, the Department of Homeland Security has been granting temporary “lawful presence” to some undocumented non-citizens who came here as children. This program was called “Deferred Action for Childhood Arrivals.” Under “guidance” documents issued by DHS in November 2014, the DACA program was to be expanded, and matched with a second, even larger program called “Deferred Action for Parents of Americans and Lawful Permanent Residents,” which would grant “lawful presence” to an even larger group of undocumented aliens who have relatives lawfully in the United States. Administration lawyers had concluded that the language of the INA gave the Secretary of Homeland Security the discretion to conduct both programs.

Texas and 25 other states rushed into court to try to block the new programs; in February 2015, a federal district court stayed them. In November, a divided three-judge panel of the Fifth Circuit agreed. Neither court, however, said the administration had violated the Constitution. The district court said that the Department of Homeland Security had violated statutory procedure. Under the Administrative Procedure Act, the court reasoned, DHS could not issue such a regulation without first engaging in a public process called “notice and comment.”

The Fifth Circuit majority raised the ante: The majority concluded that, regardless of procedure, the program announced in the “guidance” was “manifestly contrary” to the Immigration and Nationality Act, but did not reach the constitutional question.

The administration asked the Supreme Court to grant “immediate review,” and this week it did. The administration’s petition had asked the Court to resolve three questions. First, did the states even have “standing to sue” the federal government over the issue? Second, was the “deferred action” policy “not in accordance with law” (as the Fifth Circuit had held)? And, third, was “notice and comment” rulemaking required to put the policy into effect?

The Court’s order Tuesday added a fourth question: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.” That change attracted some raised eyebrows. Yesterday, Cornell professor Stephen Yale-Loehr told The New York Times that “the court’s decision could redefine the balance of power between Congress and the president.”

Veteran court watchers point out that there may be housekeeping reasons for the added question. Texas had argued below that the president was, in effect, not interpreting the law but setting it aside, thus violating his constitutional duty to “take care that the laws be faithfully executed.” Neither court reached that issue; their decisions rested on the program’s supposed procedural flaws and incompatibility with statute.

Imagine now that the administration wins on those two issues, but that the Court finds the states do have “standing.” The case would then be remanded to the same Fifth Circuit panel, and from them to Judge Andrew Hanen of the District of South Texas. Hanen, who sits in the border town of Brownsville, was an outspoken critic of the administration’s immigration policy before the case—and indeed, the plaintiffs probably filed suit in his district for precisely that reason. Judge Jerry Smith, the author of the Fifth Circuit opinion, is also an open critic of the president; in 2012 he threw an unseemly tantrum on the bench, demanding that Eric Holder write him a letter explaining comments by Obama on the lawsuit challenging the Affordable Care Act.

Thus, a remand might simply offer these judges another bite at the apple. As Brianne Gorod of the Constitutional Accountability Center put it, “If the Court didn’t add the question and simply reversed the Fifth Circuit on the APA issue, the district court judge could have then enjoined it again on constitutional grounds, and the Supreme Court would have needed to weigh in yet again.”

So it’s possible the Court is simply acting to provide what everyone agrees the nation needs—a prompt decision on the entire case. By July 1 of this year, if all goes well, we will know one way or the other whether the program can go forward.

But like American politics, American law keeps getting stranger and more vicious.

The addition of the clause, however, does offer at least the possibility of constitutionalizing what has until now been an argument about statutes. The “take care” clause is an obscure but important provision. Historically, it arises out of a long-standing complaint by British and American Whigs that the king would sometimes “suspend,” in part or whole, a parliamentary statute he found inconvenient. Parliament in 1689 enacted the English Bill of Rights, which provided that “the pretended power” of suspending parliamentary acts was a violation of English law.

Legal conservatives have been circulating the argument that Obama, in some unique way, has violated the “take care” clause by his executive activism. Professor Nicholas Quinn Rosenkranz of Georgetown Law Center told the House Judiciary Committee in 2013 that the president had violated the clause not only in the immigration area but also because the Internal Revenue Service had been denying tax-exempt status to certain political groups—even though Obama didn’t order it and, as far as we know, didn’t know it was going on. “Not knowing what an executive agency is up to — let alone not knowing that the IRS is, in fact, a bureau of an executive agency that answers to the president — is not taking care that the laws be faithfully executed,” Rosenkranz said.

In this reading, a president whose bureaucracy does a bad job in any area is violating the duty to “take care that the laws be faithfully executed.” That can’t be right. The “take care” clause is aimed at serious offenses. One recent president—George W. Bush—asserted a kind of kingly “inherent authority” when he secretly set aside the Foreign Intelligence Surveillance Act in order to conduct illegal mass eavesdropping. Love Obama or loathe him, he’s never done anything on quite that scale.

But like American politics, American law keeps getting stranger and more vicious. Once the “take care” door is opened, there’s no guarantee that one or more justices won’t be tempted to storm through it.

At the very least, we can expect to see another Yosemite Sam moment by Justice Antonin Scalia, who in 2012 ad-libbed a denunciation of Obama’s deferred-action policies in the middle of an oral dissent in an unrelated case. And the effect could be more profound. As Neal Kumar Katyal and Thomas P. Schmidt point out in a recent article in Harvard Law Review, the Roberts Court has a habit of announcing brand-new constitutional rules in cases in which it does not apply them—preventing a backlash against its change in the law, but leaving the new rules available in later cases. Thus, a majority might magnanimously let the administration off on “take care” charges—this one time—while increasing the Court’s power to inject itself into future presidential choices.