Legal Docket: Authority to regulate elections

MARY REICHARD, HOST: It’s Monday morning, January 16th. Thank you for joining us for today’s edition of The World and Everything in It. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time now for Legal Docket.

It’s been eight months since someone leaked the draft opinion in the Dobbs case back in May. Along the way we’ve learned outside investigators questioned law clerks and that some clerks lawyered up after handing over their cell phones. But that’s about it.

REICHARD: On Friday, The Wall Street Journal reported a winnowing down of the number of suspects who might’ve leaked the draft. But it’s still not narrowed down to a single culprit just yet.

Outside pressure may bring more urgency. House Judiciary Committee chairman Jim Jordan suggested that perhaps his committee is better suited to investigate, given this long delay.

EICHER: Alright, we’ve got two oral arguments today. The first one deals with an area of law most everyone agrees is broken and that is, immigration law, the system around it.

Here, Texas and Louisiana challenge the way the Department of Homeland Security sets priorities on removal of those in the country illegally. DHS directs its immigration officials to concentrate on three categories: one, suspected terrorists; two, people who’ve committed serious crimes; and three, migrants caught at the border.

REICHARD: The two states sued, arguing the directive violates laws already on the books. Those require deportations beyond just those three categories.

A federal judge in Texas agreed and so he tossed out the guidelines as arbitrary and capricious and as violating the Administrative Procedures Act. He then applied his ruling nationwide.

Now the federal government challenges that ruling. Listen to US Solicitor General Elizabeth Prelogar:

PRELOGAR: There are more than 11 million removable non-citizens in this country, and DHS has about 6,000 interior enforcement officers. To focus the agency's limited resources on threats to public safety, national security, and border security, DHS adopted enforcement priorities.

Prelogar argued that DHS simply cannot deport every alien who legally could be deported.

Besides that, she argued, these states don’t have standing to sue in the first place. She says they fail to lay out any direct injury or cost to them that can be remedied.

But Texas Solicitor General Judd Stone counters that and as he does you’ll hear him make reference to a few things you may not have heard of: “I-N-A” That’s an initialism for Immigration and Naturalization Act. Also, APA—that’s the Administrative Procedures Act I mentioned a moment ago—and he’ll refer to Article III of the Constitution, which concerns the Judicial branch of government.

STONE: The states proved their standing at trial based on harms well recognized by this Court's precedents, prevailed on merits arguments grounded firmly in the INA's text, and petitioners respond by attempting to rewrite the law of Article III, the INA, and the APA. They are wrong.

But several justices worried what a win for the states might mean. Listen to Justice Elena Kagan here. She’s speaking to lawyer for the states, Judd Stone:

KAGAN: I mean, we're just going to be in a --in a situation where every administration is confronted by suits by states that can, you know, bring a policy to a dead halt, to a dead stop, by just showing a dollar's worth of costs?

But Texas argues this is far more than a dollar’s worth of costs. Because of the DHS guidelines, Texas taxpayers have far more aliens to feed, house, and legally process. That’s a good bit more than a dollar.

Justice Kentanji Brown Jackson wondered whether Texas created some of its own problems:

JACKSON: In other words, aren't the costs associated with Texas's decision to incarcerate or parole certain non-citizens if the federal government decides not to detain them, aren't those a result of the state's own policy choices.

Stone answered that’s not the way previous rulings have approached the problem.

Prelogar for the federal government argued that the lower court judge here overstepped his authority. He can’t invalidate agency policy nationwide; he can only set it aside in the very case before him.

But justices who came up through the US Courts of Appeals stuck a verbal arrow through the heart of that argument.

Here’s one, from Chief Justice Roberts. The term “Vacatur” you’ll hear him use simply means setting aside a judgment.

ROBERTS: Our position on vacatur, that sounded to me to be fairly radical and inconsistent with, for example, you know, with those of us who were on the D.C. Circuit, you know, five times before breakfast, that's what you do in an APA case. And all of a sudden you're telling us that, no, you can't vacate it, you do something different. Are you overturning that whole established practice under the APA?

PRELOGAR: Yes, I acknowledge, Mr. Chief Justice, that the lower courts, including the D.C. Circuit, have in our view been getting this one wrong.

ROBERTS: W- Wow.

And Justice Samuel Alito pointed out that a win for the federal government on what counts as standing is inconsistent:

ALITO: An injury that would be sufficient for Article III purposes for an individual or for a private entity is not sufficient in your view for the states? There's a special rule for the states?

PRELOGAR: With respect to quasi-sovereign and sovereign interests, yes. And the reason that we think the Court has --

ALITO: So this is a rule of special hostility to state standing.

Prelogar ended her argument by pointing out that for the states to win here, murderers and terrorists could go free while states spend time chasing illegal aliens who aren’t dangerous.

PRELOGAR: That is a senseless way to run an immigration enforcement system, and it is not the statute that Congress enacted.

Yet, doing things the way Prelogar argues means states would never have standing to challenge DHS guidelines.

My sense is the states will prevail on the standing issue. On the merits—whether the DHS guidelines can prevail— I don’t have a sense for that.

EICHER: Now for our second and final argument today, titled, Moore v Harper.

This is a dispute out of North Carolina over a gerrymandered congressional map. Gerrymandering refers to the way political parties draw voting districts to their own political advantage. It’s not always illegal, and both Republicans and Democrats do it and both often complain when the other does.

This time, the Republicans in control of the State House drew the map. North Carolina’s Supreme Court struck it down, so the legislature drew a second map. Still not happy, the state court put a special master in charge of drawing another one.

REICHARD: Speaker of the House in North Carolina, Tim Moore, took the lead in challenging the lower court’s action at the US Supreme Court. He argues that the U.S. Constitution is clear as to who controls elections: the state legislatures. Not the courts.

Here’s what the U.S. Constitution says about it. “The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.” The Elections clause, Article I, Section 4.

And “each state shall appoint in such manner as the legislature thereof may direct, a number of electors.” Article 2, Section 1.

Key word in that? Legislature.

Lawyer for Moore and the state legislators, David Thompson:

THOMPSON: The elections clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function

THOMAS: For the first 140 years of the republic, there was not a single state court that invalidated on substantive grounds any congressional redistricting plan...

One of the three lawyers arguing against that view and in favor of allowing courts to redraw voting maps was Neil Katyal:

KATYAL: For 233 years, states have not read the elections clause the way you just heard, the blast radius from their theory would sow elections chaos, forcing a confusing two-track system with one set of rules for federal elections and another for state ones. Case after case would wind up in this Court with a political party on either side of the V. That would put this Court in a difficult position…

The justices must decide whether state legislatures have sole authority to regulate federal elections, without constraint by state courts or other laws. One side says yes, the other says no.

The “yes” side, argued by Thompson, had a tough time of it. You’ll hear Justices Sonia Sotomayor and Elena Kagan in turn:

SOTOMAYOR: If judicial review is in the nature of ensuring that someone’s acting within their constitutional limits, I don’t see anything in the words of the Constitution that takes that power away from the state.

KAGAN: If I could, Mr. Thompson, I'd like to step back a bit and just, you know, think about consequences, because this is a theory with big consequences.

Big consequences like letting legislatures restrict voting rights or inserting themselves into the role of certifying elections.

Why get rid of checks and balances on those things?

KAGAN: And -- and you might think that it gets rid of all those checks and balances at exactly the time when they are needed most, because legislators, we all know, have their own self interests. They want to get re- elected. And so there are countless times when they have incentives to suppress votes, to dilute votes, to negate votes, to prevent voters from having true access and true opportunity to engage the political process.

But Thompson said the Constitution already contains guardrails needed to avoid all of that:

THOMPSON: Your Honor, so our -- our position is that checks and balances do apply, but they come from the federal Constitution and the panoply of federal laws like the Voting Rights Act and other statutes that are highly protective of voters. So there is a check. There is a balance. And there's also a political. So we've got the legal check from federal law, and we've got the political check that the founders envisioned of going to Congress.

Mainstream media headlines were the “hair on fire” sort, shouting “Democracy in the Balance” and all that.

No doubt, if the Supreme Court upholds the map drawn by the Republicans in North Carolina, it will help the GOP. But as The Wall Street Journal opined: this also happened in reverse last year in New York. Democrats gerrymandered and its state court threw it out. Had that court stayed out of it, Nancy Pelosi might still be Speaker of the House, a positive outcome for Democrats.

This one’s not so clear, so I’ll not make a prediction.

And that’s this week’s Legal Docket.

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