SCOTUS hears immigration challenge
Reading SCOTUS tea leaves is a difficult but nearly irresistible temptation. This time the case is a big one (and Justice Scalia will be sorely missed by the right, as he has been several times since his death): whether President Obama overreached when he granted amnesty to millions of illegal immigrants.
Some historic background:
“In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. However, with pens and phones replacing checks and balances, the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers,” said Josh Blackman, associate professor at the South Texas College of Law, who has followed the case from the start and filed amicus briefs opposing Mr. Obama’s claim of powers.
At issue is the Take Care Clause, which is what scholars call the Constitution’s charge to presidents to “take care that the laws be faithfully executed.”
That clause has been read to be both empowering to presidents, emboldening them with independent authority to see through the execution of laws, but also as a check ”” that, in the end, he carry out laws rather than write them.
Illegal immigration is a very large issue, to be sure. But the issue described in that quote is an even larger one, because it applies to executive power vs. legislative power as a whole, not just regarding immigration. Is not enforcing a law within the scope of “faithfully executing” it? I think it’s clear that it is not—except in the Orwellian sense. But of course the justices on the left side of the Court can probably come up with some excellent-sounding counter-arguments if they wish to, and I think they will wish to, because it’s President Obama who did it.
Now that there are only eight justices on the Court, many pundits say that the result of this case is likely to be a tie. That’s not a bad bet, considering the way SCOTUS has been split in the past and the way these justices usually decide. There’s much extra speculation about Justice Roberts, of course, who—despite having been appointed by a GOP president—twisted himself into a rhetorical knot in order to allow Obamacare to stand. Roberts may indeed, as the article I just linked indicates, avoid the hot issue of Obama’s overreach by ruling on narrow grounds that the states suing don’t have standing because they haven’t suffered the kind of damage that would give them a cause of action. That would preserve the question for a possible later date.
That’s certainly the sort of thing Roberts might do, because if there’s been one constant in his rulings it’s the desire to avoid making the Court the arbiter of tough decisions that overrule one or another branch of Congress. IMHO, that is why he didn’t want to overrule Obamacare—because it was an act of Congress and supposedly represented the will of the people (ignoring, of course, how it was passed). In this case, though, we’re talking about a conflict between Congress and the president in which the president has usurped both the power of Congress and the explicit wording of the Constitution (“faithfully execute”). That seems different to me—but will it seem different to Justice Roberts?
In this particular case, by the way, a tie vote would have the effect of leaving a lower court’s injunction in place, which would block Obama’s plan for now. So a tie would be something like a small victory for the right.
Just FYI from Ann Althouse (bold in the original):
http://althouse.blogspot.com/
The government lost below, so a 4-4 split would leave in place an injunction barring the policy. There had been some speculation that Justice Roberts might give a 5th vote to the pro-government side using a standing doctrine ground, but he said something that made that seem unlikely:
T:
One thing I’ve learned is that you can’t tell how justices will rule by listening to the questions they ask the attorneys.
It will be interesting to see how the RBG wing will rationalize its decision.
Those justices who vote for Obama’s usurpation of powers declare their unfitness for the office they hold. But they are merely agents of the ordinary Americans who through their own actions demonstrate themselves to be unworthy of the heritage they have been bequeathed.
“Our Constitution was made only for a moral and religious people. It is whole inadequate to the governance of any other.” John Adams
Neo,
I’m sure that’s true (Roberts on Obamacare is a prime example as you point out). I wasn’t implying such, just offering an observation from another qualified observer.
Also, tangentially, last week I spoke to a very good friend of mine who has argued before SCOTUS who impressed upon me how intimate it really is. When one is at the podium one is hardly more than several arm-lengths from the Chief Justice and standing, is at the Chief Justice’s eye level. Apparently most attorneys are quite intimidated by this physical presence the first time they “argue” a case.
Furthermore, my friend noted that these really aren’t arguments, because the Justices already know all of the arguments presented from the filed briefs. Instead, it is more of an interrogation (“You’re there to answer the Justices questions”). I suspect that such an interrogation-like environment enhances the intimidation factor especially for younger and less practiced attorneys.
T
Your lawyer friend is correct. The distance between the bench and bar is very tiny. I was shocked at the tight quarters. At the Nebraska Supreme Court, it is at least 3-5 times a greater distance.
I think Roberts is likely to side with bho based on his pretzel logic that turned a mandate into a tax. He is capable of determining faithfully execute only means what POTUS decides is within the definition of “faithfully”. One of those what the meaning of is is cases.
I will predict the court splits 4-4.
However, it really isn’t up to the court to curb the President, and I think it likely he will ignore a decision that goes against him, which will put the onus where it always was- on Congress.
In any event, the 5th circuit’s decision will be overturned by the D.C appeals court, and that will, again, put the ball back into Congress’s hands.
Not only will it be 4-4 but the Libs will spin up standing as the decisive issue so they don’t even reach the merits on constitutionality. A sure thing. Mark it down.
Progressives tempted to let Obumbler get away with this should reflect what a President Trump could do with such a precedent. Of course, the Jackass party may think that its voting fraud operations will prevent any future Pac President.
I suspect that, if the decision goes against him, Obumbler will just ignore it. Andy Jackson got away with it, why not O?