Theodore Olson, Conservative Stalwart, to Represent ‘Dreamers’ in Supreme Court


WASHINGTON — The young immigrants known as “Dreamers” have gained an unlikely ally in the Supreme Court.

Theodore B. Olson, who argued for robust executive power in senior Justice Department posts under Republican presidents, will face off against lawyers from President Trump’s Justice Department in a case over Mr. Trump’s efforts to shut down a program that shields some 700,000 young undocumented immigrants from deportation and allows them to work.

In an interview in his office, Mr. Olson said he had generally taken a broad view of presidential authority, particularly in the realm of immigration.

“Executive power is important, and we respect it,” he said. “But it has to be done the right way. It has to be done in an orderly fashion so that citizens can understand what is being done and people whose lives have depended on a governmental policy aren’t swept away arbitrarily and capriciously. And that’s what’s happened here.”

Mr. Olson has argued 63 cases in the Supreme Court, many of them as solicitor general under President George W. Bush. In private practice, he argued for the winning sides in Bush v. Gore, which handed the presidency to Mr. Bush, and Citizens United, which amplified the role of money in politics.

But Mr. Olson disappointed some of his usual allies when he joined David Boies, his adversary in Bush v. Gore, to challenge California’s ban on same-sex marriage. That case reached the Supreme Court and helped pave the way for the court’s 2015 decision establishing a constitutional right to such unions.

Mr. Trump has taken inconsistent positions on the program before the Supreme Court, Deferred Action for Childhood Arrivals, or DACA, which shields people who had been brought to the United States as children. Even as he tried to end it, Mr. Trump called on Congress to give legal status and an eventual path to citizenship to the young immigrants. He also has offered to extend the program in exchange for concessions on a border wall.

In the Supreme Court, the administration argued that the program, instituted by the Obama administration, was most likely unlawful, relying on a ruling from the United States Court of Appeals for the Fifth Circuit, in New Orleans, concerning a related program. The Supreme Court deadlocked, 4 to 4, in an appeal of that ruling.

Mr. Olson said the administration’s arguments were reminiscent of the ones it offered to justify adding a question on citizenship to the 2020 census. In June, the Supreme Court rejected the administration’s rationale, saying that it “appears to have been contrived.”

Mr. Olson said he saw a pattern. “This government acts in a manner that is almost the definition of arbitrary and capricious,” he said. “It’s ready, shoot, aim.”

He said he expected to be criticized for taking on the DACA case.

“People will say, ‘You’re undermining the president’s ability to deal with immigration, which is very, very important in this country,’” he said. “But I think underlying that is a principle. The government has a lot of freedom to do things, but it has to do them in a way that’s consistent with the separation of powers.”

In a motion filed Thursday, Mr. Olson and Michael J. Mongan, California’s solicitor general, asked the Supreme Court to let them split the challengers’ argument time when the case is heard on Nov. 12, with Mr. Olson arguing on behalf of affected individuals and Mr. Mongan on behalf of California and other states. Such divided arguments are not unusual when states and private parties are on the same side.

Luis Cortes, who is both a DACA recipient and a lawyer representing other recipients in the Supreme Court case, said he welcomed Mr. Olson’s participation.

“Having someone of Ted’s tenor join the chorus of voices that will advocate for DACA will cause a long ripple effect inside and outside the court,” Mr. Cortes said. “It will center the conversation and project that this issue transcends political lines.”

Theodore J. Boutrous Jr., a partner of Mr. Olson who had been counsel of record in the Supreme Court case, said it made sense for Mr. Olson to join the effort.

“He’s one of the country’s leading experts on the powers of the president and the executive branch,” Mr. Boutrous said. “He can bust through a little bit of the partisan atmosphere surrounding the case.”


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