Meredith Simons and Chase Harrington prevailed over Ace Factor and Svein Hoexter before a panel of federal judges in the final round of the 2016 Dean’s Cup Moot Court competition on Feb. 23. The judges named Simons as best oralist.
The finalists, all second-year students, argued issues currently pending before the Supreme Court of the United States in Texas v. United States. The subject of the appeal is the district court’s preliminary injunction enjoining a controversial “deferred action” policy for undocumented immigrants, which the Secretary of the Department of Homeland Security announced in a memo to immigration officials in late 2014. The U.S. Court of Appeals for the Fifth Circuit upheld the injunction, which enjoined the policy nationwide.
Judge Richard C. Tallman of the U.S. Court of Appeals for the Ninth Circuit presided over the panel hearing the final arguments as chief justice. He was joined by Judge Jane Kelly of the U.S. Court of Appeals for the Eighth Circuit and by Judge Kimberly Jo Mueller of the U.S. District Court for the Eastern District of California.
All three judges praised the finalists’ advocacy following the oral argument.
“The quality of the advocacy was absolutely outstanding,” said Tallman. “I wish every argument that I sit through as a Court of Appeals judge was as well presented and as effectively argued as the case today. I thought it was a challenging problem when I read it. It’s always a bold move to tackle an issue that is currently live and pending before the highest court in the nation, but I’m absolutely convinced, and I know I speak for my two colleagues when I tell you that any one of the four of you could easily handle this argument before the Supreme Court of the United States and it would be a very impressive performance.”
Mueller and Kelly agreed with the assessment. “You tackled, really, some tough issues — tougher than we see in real court,” said Kelly. “You knew the record, you knew the laws, every one of you. It was very impressive.”
The Dean’s Cup finalists addressed several issues: whether the plaintiffs — Texas and 25 other states — have Article III standing to challenge the deferred action memorandum; whether judicial review of the agency policy, called DAPA, is precluded by law and precedent; and whether the plaintiffs established a substantial likelihood of their success on their claim that the secretary’s memo was required to undergo notice-and-comment rulemaking.
Simons and Harrington represented the United States as petitioners, while Factor and Hoexter argued on behalf of Texas, as respondent. The district court had held that Texas had standing to bring the action because state officials would be obligated to issue driver’s licenses to deferred-action recipients who apply for them, and the costs of doing so would constitute a cognizable injury traceable to DAPA and redressable by an injunction.
Texas had suffered such an injury “because when it joined the Union, it surrendered its sovereign prerogatives to make immigration classifications,” Factor argued. “Further, Massachusetts v. EPA held that states have special solicitude in the standing analysis. And barring Texas from standing here would be doing the exact opposite of that — saying that it is harder for Texas to sue than an individual who suffers a similar concrete harm.” The concrete injury he said Texas would suffer as soon as the deferred action policy was implemented is directly traceable to that policy “because it removes a categorical bar for eligibility for lawful presence.”
In rebuttal, Simons said the government’s position “is that the states don’t have standing because they made the choice in the first instance to connect eligibility to a state law subsidy to DHS decisions, including DHS decisions related to deferred action.” Holding that Texas has standing would open the federal governments to suits by states over any policies they simply don’t like, she said.
Simons denied that the DHS policy creates a new category of “lawful present aliens,” which would exceed the agency’s authority. “This is not a new category,” she said. “Saying that an alien has lawful presence is simply a label that [indicates] the Department of Homeland Security has decided to temporarily refrain from deporting that alien. So DHS has not created a new form of deferred action with the deferred action guidelines. What they’re doing here is completely consistent with what they’ve been doing for decades, a practice that has been recognized both by this court and by Congress.”
The Dean’s Cup, initiated in 1963 by Deans E.R. Latty and J.D. Johnston, is Duke’s premier oral advocacy competition. Held annually for second- and third-year students and organized by the Moot Court Board, the Dean’s Cup seeks to highlight the school’s best appellate advocates. The competition centers around a case taught in the Appellate Practice class offered every fall.
Jordan Glassberg, Rory Gledhill, Brian Underwood, and Ashley Waid, all 2Ls, served as coordinators for the Dean’s Cup competition. Tallman commended the organizers as well as the advocates for the quality of the competition’s final round.
“Our job is at the peak when we have advocates who are incredibly well prepared, when all three of us are well prepared for the argument, and when we can have a real conversation with the lawyers about the toughest issues that the case presents,” he said. “And you just did a marvelous job. This was a pleasure.”