You likely have heard about the high-stakes case U.S. v. Texas, which pits the federal government against twenty-six states over a policy that would allow an estimated four million undocumented individuals to stay here temporarily. Texas says it has the right to sue the federal government and try to stop the policy because its own law requires issuing driver's licenses to some of those people, which might get expensive. The Obama administration counters that Texas can't challenge a federal policy based on "incidental" costs. The Supreme Court is expected to decide the question by the end of June.
Chances are, no matter how mesmerizing this particular battle over immigration policy, you did not listen to the parties' arguments before the Supreme Court. It's probably best to keep it that way. Even for attorneys used to the slow grind of legal argument, this one was tough.
I have written previously about how confounding immigration law can be. And it's no secret that lawyers have a knack for making simple concepts outrageously complex. Who could forget Bill Clinton's slicing and dicing the word "is" during the scandal over his relationship with Monica Lewinsky? In the U.S. v. Texas argument, the Justices and attorneys could barely have a conversation without getting tangled in mind-bending terminology.
The biggest problem was figuring out whether Obama's policy would grant the undocumented a legal immigration status, one of Texas' objections. The policy says it would make undocumented individuals "lawfully present" for three years, but Obama's lawyer struggled mightily to explain why that doesn't mean they would be here "legally." The lawyer--Solicitor General Donald B. Verrilli--told the Justices that "lawful" presence refers to temporary tolerance. It does not make that presence "legal" in the sense of regularizing someone's immigration status.
Unfortunately, this is entirely accurate. "Lawful" presence is what lawyers call a term of art--it has a definition different from what plain English might suggest. But Chief Justice John G. Roberts understandably mocked this use of language, and Verrilli himself mixed up "lawful" and "legal" during the argument. It was a relief when Verrilli offered to strike the words "lawfully present" from the policy.
Whether "deferred action" is an "immigration status" was a related battleground. "Deferred action" in immigration law refers to the government's granting a temporary reprieve from deportation--exactly what Obama's policy would give the undocumented. The term "status" is typically used to divide people into categories. Most of us have filled out forms asking for our "marital status" and categorizing us as single, married, or divorced. So is the status of having deferred action an "immigration status"? Immigration lawyers say no, because it can be taken away with the stroke of a pen. Obama's policy accordingly indicates that granting "deferred action" to the undocumented does not confer a "legal status." It's another example of something being simultaneously correct and nonsensical.
There were moments when I was the one who felt confused. For whatever reason, Verrilli told the Justices that people with asylum status aren't eligible for deferred action. Sure, but who cares? As a U.S. citizen, I can't get deferred action, either, but I'm fine with that. Chief Justice John G. Roberts confirmed with Verrilli whether he meant what he said, and Verrilli stood his ground. I frankly have no idea what Verrilli was thinking.
By the end of the argument, I was left with the question, how did things get so bad? The answer can only be that lawmakers draft messy language and that attorneys perpetuate or even exacerbate the problem. Too many of us take it for granted that we are the gatekeepers of a complex and confounding field of law. But it should not be that way. We all should be aiming for clarity.
Something is wrong when Supreme Court Justices wrestle this way with legal concepts. The problem is clearly not they. The law, regulations, and policies are the problem, as is the inertia that keeps them that way.