POSTED AT 10:01 AM ON APRIL 18, 2016 BY ED MORRISSEY
Did Barack Obama overstep his authority in ordering the executive branch to expand immigration programs to include illegal aliens? The Supreme Court hears arguments today onUS v Texas, but this is a unique hearing in more ways than one. The House of Representatives has filed its own brief in parallel with the states, making this a full-fledged constitutional dispute:
The Supreme Court on Monday will take on a case that could torpedo the Obama administration’s controversial executive actions on immigration that have become a flashpoint in the 2016 race.
President Barack Obama announced the moves to great fanfare in late 2014, as a response to congressional inaction on immigration reform, but a federal court blocked them after Texas and 25 other states sued. …
The GOP Congress will be involved at oral arguments as well. The House of Representatives, in an unusual move, intervened in the case against the administration, and will have 15 minutes before the eight justices to argue its case Monday.
The Washington Post notes that this will finally put the court in the center of a much broader dispute between the two ends of Pennsylvania Avenue:
This time, the justices will confront a fundamental tension of Obama’s tenure: whether the president is correctly using the substantial powers of his office to propel the nation past political gridlock or whether he has ignored constitutional boundaries to unilaterally impose policies that should require congressional acquiescence.
Obama’s immigration program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), has split the 2016 presidential candidates. Republicans have said they would reverse it immediately if it took effect. Democratic hopefuls have said they would expand upon it.
One more unusual aspect of this case is the number of justices hearing it. The death of Justice Antonin Scalia leaves the court with only eight members to hear the appeal. In this case that does not disfavor the conservatives, as a 4-4 tie would leave the appellate court’s ruling that blocks Obama’s actions in place, but it doesn’t help conservatives since a 5-4 would have set precedent that future courts would have to follow.
But will it even get to a 4-4 tie? The Post’s Robert Barnes wonders whether two of the four might go the other way, especially when it comes to standing:
Two justices will be closely watched in the case. Justice Anthony M. Kennedy wrote the court’s decision in 2012 striking part of Arizona’s attempt to crack down on illegal immigrants in the state. The Obama administration’s brief relies heavily on Kennedy’s finding that the federal government and the executive have considerable power in designing the nation’s immigration policy.
And proponents of the administration’s policy think Chief Justice John G. Roberts Jr. could be amenable to the argument that the states lack standing to sue. Roberts has been a stickler in the past for such an argument, and it would be one way for the court to stay out of a political dispute best settled by the political branches.
The court also added the question of the “Take Care” clause, the argument that Obama had a duty to enforce the law as Congress wrote it. Barnes believes that this won’t be as much of an issue based on the dearth of briefing material on it, and if standing becomes an issue he may be correct. However, the fact that the court added it to the issues and that the question goes to the heart of the dispute still could be a signal that the Supreme Court might take a broader view of the impasse. It’s the one point that rises above all others in the constitutional sense, and perhaps the court might be ready to remind the executive branch of its co-equal nature with the legislative and judicial branches. They edged up to it, philosophically speaking, when slapping down Obama two years ago over his recess appointments to the NLRB. That was a unanimous decision, and perhaps the court added the “Take Care” clause issue to Texas as a sign of displeasure that Obama hadn’t gotten the hint. Perhaps. One can only hope.
We’ll know … sometime. The oral arguments will take place today, but expect the decision on this to come at the end of the term with the usual June SCOTUSpalooza. Just keep repeating this mantra when reading reports later today about the hearing: Questions don’t necessarily correlate to decisions. Questions don’t necessarily correlate to decisions. Questions don’t necessarily correlate to decisions….