The Supreme Court agreed this morning to take the case of Texas and 25 other states who sued the federal government over the Obama administration’s unilateral executive action to limit deportations of certain illegal immigrants. The program was halted by the Fifth Circuit Court of Appeals in November over the costs to the states resulting from the program, not its inherent (un)constitutionality.
Obama authorized the DAPA program after Congress rejected a similar legislative proposal to defer deportations for children brought here by their parents…and those parents themselves. That separation of powers argument is the main problem with the program, as I’ve argued before.
Although it’s not explicit in the Constitution, the intent of the separation of powers was for Congress to write federal policy and the President to enact it. The President doesn’t get to write his own policy if Congress refuses to do as he wishes. This Supreme Court decision may end up ruling on that very broad issue, or it could rule on the merits of the DAPA program.
Either way, I think in all the talk of a Convention of the States to pass new constitutional amendments, one to address this issue should be considered.
New Constitutional amendment: No proposal introduced in Congress but not passed can be included in an executive order.
— Matthew DesOrmeaux ⚜ (@cynicusprime) January 5, 2016
Fortunately, the Supreme Court has overturned Obama’s executive overreach before, once unanimously. In a stunning unanimous 9-0 ruling in 2013, the Court invalidated Obama’s non-recess recess appointment of NLRB officials. Unfortunately this case isn’t quite so cut and dry as Congress deciding when its in recess.
There is also the matter of the Supreme Court’s two acquittals of Obamacare’s constitutionality. In what most conservative and libertarian scholars view as a pretzel-like judicial failure, the Court has ruled twice that aspects of the president’s health insurance overhaul are legal. Similar judicial acrobatics could be used by an outcome-based court to declare Obama’s benevolent immigration proposal legal.
Regardless of how the Court rules, timing is everything. The case will be heard in April, meaning a ruling handed down by the end of the Court’s term in June. The hearing will be after most of the state presidential primaries have been decided, but the judgment will likely be issued at the end of June, one month before the Republican National Convention in Cleveland at the end of July.
The GOP will either be handed a huge victory or a crushing defeat in its argument against unilateral executive power (at least by this president) right before it’s official nomination occurs. With immigration already a huge issue in the race, this case will guarantee it remains in the forefront of the campaign at least through the summer.