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Posted on 04/18/2016 11:23:08 AM PDT by Elderberry
No matter which way the Supreme Court turns on President Obama’s ambitious move to overhaul immigration policy, it can get to a result only if a fifth vote can be found to make a majority among the eight Justices. That, at least, seemed likely after a ninety-minute argument on Monday in United States v. Texas, the fiercely contested courthouse battle between the White House and Congress over who among eleven-or-so million immigrants can stay in the country without a specific legal right to do so.
The Court’s four liberal members were working extra hard to make the central issue whether state governments can even be in court to challenge how the government enforces immigration laws — a thrust that encountered some significant resistance from a few others on the bench. It may have been that the strength of their efforts arose out of a fear that they could not win on the legality of the policy itself, but a realization that the conservatives also are not likely to hold the votes needed to prevail on the merits.
At repeated points during the argument, it appeared that the Obama administration might actually be able to salvage its policy as both legal and enforceable (if the lawsuit were allowed to go forward) by simply deleting from the regulations in dispute a two-word phrase: “lawful presence.” It was very clear during the challengers’ argument — by lawyers for the twenty-six states and for the U.S. House of Representatives — that the phrase carries enormous meaning for them, that they see it as the equivalent of a whole new immigration law enacted by the White House, not Congress.
At one point, Justice Anthony M. Kennedy, who could wind up holding a decisive vote, appeared to hint that he agreed that this is what happened, that in this instance, the normal order of government policymaking had been turned “upside down,” as he put it.
The Obama administration’s lawyer sought to defuse that complaint by telling the Court, in response to several questions about the phrase, that it stands for nothing whatsoever, and could simply be deleted without affecting the policy in any way. But, if that is the solution, would it be enough to generate five votes in favor of the policy? It was hard to envision that on Monday, making more sense of the heavy focus on the states’ right to sue in the first place. If the states were constitutionally barred from suing, the case would be over — period.
A federal judge in Texas and the U.S. Court of Appeals for the Fifth Circuit allowed the states’ challenge to go forward, on the theory that at least one of the states — Texas — would suffer a significant budget impact if it were faced with handing out drivers’ licenses to perhaps millions of undocumented immigrants, if they gained the right to stay in the United States. That impact, the lower courts said, was what gave Texas the right to sue on behalf of itself and twenty-five sister states.
At Monday’s arguments, a series of rapid-fire questions by Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor highlighted the potentially decisive significance of the constitutional question about when state governments may sue the federal government because of a disagreement over federal policy. That is a question under the Constitution’s Article III, which limits federal courts’ authority to deciding live legal controversies, those in which someone can claim to have been specifically harmed by government action.
Breyer trotted out prior Supreme Court precedents on Article III “standing” to make the point, and his three liberal colleagues had an array of objections to the states’ right to sue to block the Obama policy announced seventeen months ago, but not yet in effect because of lower court temporary orders against enforcement.
Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., were aggressive questioners of the administration lawyer, Solicitor General Donald B. Verrilli, Jr., on the “standing” question. Both seemed to have come into the argument inclined to accept that Texas and the other states did have enough at stake that they should have the right to take their grievance to court. But there did not appear to be support for that from any of their colleagues; Kennedy was not noticeably favorable to the states on that point; Justice Clarence Thomas said nothing during the argument.
The Chief Justice and Justice Alito used up much of the ten minutes allowed for a lawyer representing undocumented parents who could benefit from the Obama policy, with most of their questions on the “standing” issue. Thomas A. Saenz of the Mexican-American Legal Defense and Educational Fund had little opportunity to talk about the merits of the policy.
Scott A. Keller, the Texas state solicitor general arguing here for all of the twenty-six states, had much of his time at the lectern absorbed in exchanges with the Justices pressing their point against the right to sue, and those exchanges were seldom interrupted by any of the other Justices. The Chief Justice, in particular, avoiding questioning Keller about the “standing” issue.
When Keller had a chance to make the points he wanted to stress, he sought to keep the Court focused on the states’ argument that the Obama policy was not just a discretionary use of authority to allow some undocumented immigrants to prolong their stay in the United States. The policy, he insisted, installed — without a word of approval from Congress, and actually in defiance of the immigration laws Congress already has passed — a brand new legal status, “legal presence.” It may not be a path to citizenship, Keller suggested, but it was a path to opportunity in this country — a privilege that, he said, only Congress can confer.
The House of Representatives sent a young, and sometimes brash Washington lawyer, Erin E. Murphy, to make many of the same points that Texas had offered. She, too, insisted that the phrase “lawful presence” meant the same thing as a congressionally conferred legal status for people who otherwise would be in line to be deported.
That might turn out to have been a risky strategy, if the Court were able to put together a majority that would conclude that, since the phrase could be so readily cast aside by the government, did it actually mean what the states and the House feared that it did?
Huh. Just saw another article that thinks the court is split evenly on this 4 to 4.
The fiction that any of the azzclown justices on the Supreme Court base their rulings on the constitutionality of an law rather than the politics of the law is dead.
I think that any Supreme Court ruling should be reviewed by congress as to the soundness of their constitutional reasoning and if it is valid, then the sponsors of that legislation should go through impeachment proceedings. If the Supreme Court ruling is suspect, there should be impeachment proceedings against the Justices who ruled unconstitutionally.
It is one way to enforce fidelity to the Constitution.
Sounds like Erin Murphy rubbed the Court the wrong way. Too many cooks...
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Congress is even more political than the Supreme court. Appoint a committee? Look at the FCC, they’re just as political as Congress.
A solution might be to hold them accountable for their decisions. Don’t know exactly how that would work, but I think a firing and losing their ability to ever work for government again would be a start.
Ping......
I believe 0b0z0 will win this crucial “future voters” allowed to stay here, by 5-3 ruling.
The turncoat is the same one who saved 0kakaKare twice; Roberts.
This does not sound good. We have come to the state of political judiciary as a legislative branch beholding to anti -constitutional dictators rather that jurisprudence. There is no issue of state standing and states sue the federal government every day on regulations and imposed expenditures. All this is is a charade— a fraud to subvert the actual constitutional requirements for the MAKING OF LAW!! We have literally gone over the cliff already. where a political ideology is imposed by a dictator.
I believe 0b0z0 will win this crucial “future voters” allowed to stay here, by 5-3 ruling.
The turncoat is the same one who saved 0 twice; - Roberts.
Thanks, Melancholy.
This is what we're up against, folks. Don't let Mrs. Bill Clinton or Bernie Sanders win.
One of the judges should of asked the lawyer to define ‘unlawful presence.”
No need for a fifth vote: Texas and 25 other states challenged Obama’s authority to implement the policy by executive action, rather than going through Congress. Federal district court Judge Andrew Hanen in Brownsville, Texas, upheld the challenge in February 2015 and blocked the program from being implemented nationwide.
The U.S. Court of Appeals for the 5th Circuit upheld that ruling last November in a 2-1 decision. The panel’s majority said Obama exceeded his authority by going around Congress.
You only need a fifth vote if you want to overturn the two lower courts. A 4-4 split means the ruling by the Court of Appeals stands and Obama loses.
“I believe 0b0z0 will win this crucial “future voters” allowed to stay here, by 5-3 ruling.
The turncoat is the same one who saved 0kakaKare twice; Roberts.”
Yes. In other words, the laws on the books mean NOTHING, and we are living in a lawless country.
I wouldn’t be surprised to see the cowards pass the buck back to the 5th Circuit with instructions to review or rehear the case.
NOT exactly correct, you see John Roberts and Co. had an intimidated visit at SCOTUS on January 14th, 2009, ONE week before he stole the W.H. = A Chicago-Godfather-Thugs-Like “visit”(???)............. From that day on ALL cases of his NBC issues were settled for good and it trickled down to ALL lower courts as well as to 535 CONmen/CONwomen into silencing them and the whole nation. Also helped by hack Jack Maskell!!!
Don’t you see it ???
Right. I don’t understand why the people writing the article did not explain what happens in the event if a tie. And here, a tie is good.
Oh, I understand full well. They want SCOTUS to over turn and support the Administration. Need five votes for that.
Yeah, they’re going to need to get Kennedy to switch sides to save this turkey.
“Yes. In other words, the laws on the books mean NOTHING, and we are living in a lawless country.”
Laws on the books mean NOTHING.
VOTES on the books mean NOTHING.
UNIPARTY CONGRESS means NOTHING.
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