When Smart Supreme Court Justices Play Dumb by Linda Greenhouse

'THERE are few sights more disconcerting during a Supreme Court argument than smart justices playing dumb.

Any lawyer knows that a word that means one thing in ordinary conversation can be deployed as a term of art and assume a separate meaning in the context of legal analysis. Yet this garden-variety insight seemed to elude Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. during last week’s argument in the big immigration case from Texas. It turns out that the phrase “lawful presence,” understood as a term embedded in the labyrinth of statutes, regulations and practice of immigration law, doesn’t have the obvious meaning it would have in everyday speech, namely that someone is in the country legally and has the right to remain here. Is that really so hard for two of the top lawyers in the United States to understand?

The issue in United States v. Texas is whether the Obama administration has the authority to defer deporting the millions of unauthorized immigrants who are parents of American citizens and of children with permanent resident status. The Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA program, was announced by the Department of Homeland Security in November 2014. Texas and 25 other Republican-led states promptly sued and won an unusually broad nationwide injunction from a federal district judge in Brownsville, Andrew S. Hanen. After dragging its feet for months, the United States Court of Appeals for the Fifth Circuit upheld Judge Hanen’s order in a 2-to-1 decision last November, barely in time for the administration to get its appeal up to the Supreme Court for argument and decision during the current term.

The general takeaway from last week’s argument was that the administration is going to lose by a 4-to-4 tie. A tie affirms the lower court, and because tie votes don’t result in opinions (the justices on either side of the tie are not even identified), the court in that scenario would hand the administration a stinging defeat while sparing the justices the bother of having to explain themselves. Maybe that’s what will happen; if so, the president’s defining immigration initiative will end with an anonymous whimper. (Half of it, anyway; the companion program that defers deportation for those who were brought to the United States as children — DACA, for Deferred Action for Childhood Arrivals — is in effect and is not at issue in the case.)

But a close reading of the briefs and the argument transcript (I did not attend the argument) suggests at least the possibility of a more favorable outcome for the administration. This column is not meant as a prediction.'>>>

http://www.nytimes.com/2016/04/28/opinion/when-smart-supreme-court-justices-play-dumb.html?