Argument analysis: Search for a fifth vote on immigration

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?

>
a two-word phrase: “lawful presence.”...the phrase carries enormous meaning...The Obama administration’s lawyer [says] it stands for nothing whatsoever

This is what we’re up against, folks.
>

ONLY to a lawyer can words mean NOTHING....when it suits them/with caveats/in certain conditions/etc.

Just like ‘shall not be infringed’, ‘no property shall be taken’, ‘subject to the jurisdiction thereof, or ‘State exchanges’ to name a few....

Yep, these ass-clowns can remain on the bench for their terms for BLATANT mis-reading, referencing FOREIGN law and the like. What a county (we once had), no?

Following up on swaying Roberts, here’s the gist of it:

Yesterday evening, I heard on FNC that Kagan is trying to give Roberts something to hang his hat on because he likes to “preserve things”!

She asked the government lawyer if some language could be “tweaked” to help the (gov) case

Tweak? Preserve things, aka, unconstitutional EOs?

The commies are playing with language again. They’re trying to frame the argument to become:

The president HAS the constitutional right to deal with immigration.

Rather than:

The president DOESN’T HAVE the constitutional right to ALTER laws passed by congress or MAKE new laws.

Roberts must be struggling with how he would vote with liberals and MAKE THIS SETTLED LAW!

If it’s 5 to 3, I don’t think a president Trump can reverse it. He could cancel 0b0z0’s EO and issue his OWN IMMIGRATION LAWS through a new EO under this ruling, though.

I’m not a lawyer. FReeper lawyers are welcome to help.

PING!!

Thanks, melancholy - Post 25

6:15 min mark

Supreme Court Hears Arguments On President’s Immigration Plan today - The Kelly File

https://www.youtube.com/watch?v=f9UFrAsalpE

Yesterday evening, I heard on FNC that Kagan is trying to give Roberts something to hang his hat on because he likes to “preserve things”!

She asked the government lawyer if some language could be “tweaked” to help the (gov) case — Tweak? Preserve things, aka, unconstitutional EOs?

The commies are playing with language again. They’re trying to frame the argument to become: “The president HAS the constitutional right to deal with immigration.”

Rather than: “The president DOESN’T HAVE the constitutional right to ALTER laws passed by congress or MAKE new laws.”

Roberts must be struggling with how he would vote with liberals and MAKE THIS SETTLED LAW!

If it’s 5 to 3, I don’t think a president Trump can reverse it. He could cancel 0b0z0’s EO and issue his OWN IMMIGRATION LAWS through a new EO under this ruling, though.

Fox News is reporting SCOTUS split on immigration, Roberts says he may approve!!

http://www.freerepublic.com/focus/f-chat/3422437/posts

Just reported that Roberts supports Obama’s immigration plan.

Thanks to Bush and Cruz

“If it’s 5 to 3, I don’t think a president Trump can reverse it. He could cancel 0b0z0’s EO and issue his OWN IMMIGRATION LAWS through a new EO under this ruling, though.”

Trump: “ OK, so we are now a lawless whorehouse country? Fine!

I TOO will make my own laws! “

“Trump: “ OK, so we are now a lawless whorehouse country? Fine!

I TOO will make my own laws! “

I always maintained that 0b0z0’s re-election damaged the constitutional republic irreparably. No matter who becomes president, roughly 50% of the voters will demand IMMEDIATE RESULTS to fix the damage and “cancel unconstitutional laws. We can’t abide by the law, courts, the constitution, etc. because that will take years, even if successful. Meanwhile, the other side are making IMMEDIATE LAWS UNCONSTITUTIONALLY at a breakneck pace when they’re in power.

Best case scenario is that our side has a president for eight years and the court battles in front of progressive judges will consume most of it with negligible success. Then comes a progressive president who starts more lasting crap, even if it’s for only 4 years of creating changes and laws that are insurmountable. The gap will widen and the beat goes on.

Conclusion: I believe we’re going to be living in a PERPETUAL DICTATORSHIP, with each side racing to erase the other side’s “accomplishments” with EOs.

That’s the definition of dictatorship. Sad, but true.

The “Turncoat” is same man or men who got a “visit” = intimidation at SCOTUS on January 14th, 2009, one week before the W’Hut was illegally stolen!

On that same day, January 14th, 2009, the whole United States of America was “castrated” into silence on certain issue, even before some shot point blank, Bill Gwatney!!

Just see/look how lower courts, 535 CONmen/CONwomen, follows John Roberts “lead” after he, John Roberts and Co., rules in “favor” of illegal Soetoro. Remember THEY were publicly scolded/intimidated at a SOTU with the RATS standing ovation, so “turncoat” is NOT the right word, but rather INTIMIDATION or bribery!!!

The “Turncoat” is same man or men who got a “visit” = intimidation at SCOTUS on January 14th, 2009, one week before the W’Hut was illegally stolen!

On that same day, January 14th, 2009, the whole United States of America was “castrated” into silence on certain issue, even before some shot point blank, Bill Gwatney!!

“The “Turncoat” is same man or men who got a “visit” = intimidation at SCOTUS on January 14th, 2009, one week before the W’Hut was illegally stolen!...........

.......... THEY were publicly scolded/intimidated at a SOTU with the RATS standing ovation, so “turncoat” is NOT the right word, but rather INTIMIDATION or bribery!!!”

During that SOTU, Alito shook his head in defiance and said (reading lips here) no, not true.

Alito, Thomas, Scalia and Kennedy did not TURN under 0b0z0’s intimidation and scolding. Most likely, Roberts TURNED AND SUCCUMBED under a particular threat of taking away his “illegally” adopted kids.

Interesting as far as I know Alito was NOT present at the 1/14-2009 meeting !!!

Just wonder WHY all lower courts has throwing out every single suits since 2008 starting with a Democrat, Mr. Berg on its merits. Makes absolutely NO sense unless intimidation involved, and again Bill Gwatney was also covered up, likewise Judge Scalia ???

“Interesting as far as I know Alito was NOT present at the 1/14-2009 meeting !!!.......

Just wonder WHY all lower courts has throwing out every single suits since 2008 starting with a Democrat, Mr. Berg on its merits.”

OK Mr. Knowitall, KEEP WONDERING!

It seems that you’re interested in one subject that is futile to talk about. Why don’t you chase Cruz who doesn’t even claim that he was born in the USA? A new rabbit to chase all the way down the proverbial rabbit hole!

I was referring to the 2010 SOTU WHEN 0b0z0 chided SCOTUS for the Citizens United decision, which apparently you DIDN’t connect to what I was talking about.

http://www.washingtonpost.com/wp-dyn/content/article/2010/01/28/AR2010012802893.html

No more bantering, get it?

OK just keep anchoring your head in the sand or some place else and let all these things pass you by, or really better YOU not interesting but certainly approves of it!!!

So if you want to see what I’m doing with the Canadian born citizen, the Anchor Baby, also from Cuba, or stateless, and part of the Cuban Sandwich, you are welcome to follow the Mr. “Knowitall” on Facebook ???

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.