Diary

The Supreme Court and Amnesty: Coming Soon?

We may know as soon as Tuesday whether the United States Supreme Court will accept the case of United States vs. Texas which challenges Obama’s series of executive orders which would effectively allow up to 4 million illegal immigrants remain in this country.

To recap, in November 2014 Obama announced a series of executive actions that would protect illegal immigrants from threat of deportation and eventually grant work permits to them.  Three months later a court in the Southern District of Texas sitting in Brownsville issued a stay on implementation of the actions.  The Obama administration appealed to the judge in that case to lift the stay pending appeal to the Fifth Circuit Court of Appeals which includes Texas.  The judge refused and the administration moved onto the Appeals Court.  In a 2-1 decision, the Fifth Circuit refused to lift the stay and the administration then appealed to the United States Supreme Court.

Besides the underlying issue of whether Obama has the constitutional authority to issue such decrees, the case is mired in legalities that require some explanation.  The first is the issue of standing.  Here, the administration is arguing that Texas has no such standing and if the Court agrees, the suit ends there and Texas loses.  The government is arguing that the federal government has long held discretion in the enforcement of immigration laws.  The most recent law expressly grants the Secretary of Homeland Security some discretion.  It is this discretion which lies at the heart of the matter.  In essence, the government is arguing that the states have no right to bring suit against an action simply because they disagree with it unless they can show some potential “harm” from its implementation.  However, the court in Texas determined that the increased costs of administration demonstrated a “harm” and Texas had standing.

There is a bit of cat-and-mouse in this whole scenario.  When the Obama administration appealed to the Supreme Court, the normal chain of events is for Texas (and other states) to supply a reply brief within a certain amount of time.  The states asked for 30 days.  Since the government’s brief was filed in December, 30 days would have pushed the state reply brief into late January.  By that time, the case would come up for consideration sometime in late January or early February.  However, the Court’s other pending cases do no come to a standstill and by time it was scheduled for conference consideration, assuming the Court takes the case, it may be too late to hear the case this term as the oral argument calendar may be full.  That would put oral argument off until October, 2016 at the earliest- right in the middle of the campaign.  Instead, the Court accepted a compromise where the states could reply within eight days in exchange for the administration not submitting a reply brief.  And there is good reason for this: the Obama administration wants this case decided this term before the end of June so that they can implement it before Obama leaves office realizing that there is no guarantee a Democrat will be elected in November.

Thus, the case is now on the conference schedule.  The first opportunity to issue an order one way or the other has passed and the petition was held over for the January 15th conference for consideration.  Last week, the Court granted eight cases filling up the oral argument calendar, but there are still some open slots.  We may find out this Tuesday whether this case is taken.  If not, it may be held over again for the next conference on January 22nd.  It should be noted that holding over petitions in conference is normal and that all eight of the most recently granted cases were, in fact, held over at some point to some degree.

Besides standing, the original appeal from the government challenges the state’s assertions that the DHS violated the Administrative Procedures Act which would allow for a comment and review period before implementation and whether the DHS “guidance” memo was arbitrary and capricious.  This is the legalese in the original appeal.  However, the state’s reply (which the DOJ did not respond to by agreement) asked the Court to go even further and get to the crux of the matter.  That is, the states argued that the action violates the Separation of Powers doctrine (Congress passes the laws; the executive enforces them) and it violates the President’s duty under the Take Care Clause.  It should be noted that the Court does not have to consider these items since the case from Texas and in the Fifth Circuit did not raise these claims.

Leaving aside the sideshows and the legalese, this action is yet another example of this administration showing its disdain for Congress and the Constitution.  As the states argue correctly in my opinion, because the law allows “discretion” to the DHS, that discretion is on an individual-by-individual basis, not a broad stroke interpretation of “discretion” that legalizes up to 4-5 million people who entered this country illegally.

If the Court takes this case (they will likely get the four votes necessary), it will be interesting to see if they add the constitutional issue requested by the states.  They are under no obligation to do so.  The case would likely be argued in late March or April with a decision in late June.  If they accept the constitutional issue and decide in the state’s favor, it would be a significant slap down on executive authority.  I am not optimistic here.

Therefore, they have to decide the other issues.  They could simply say the states are wrong and that ends the case and Obama’s orders go into effect.  They could say the states are partially correct and remand the case for trial in Texas in which case they would likely allow the stay to remain in place pending the outcome of that trial.  No matter the outcome, it would likely be appealed to the Fifth Circuit again.  Unlike the Supreme Court, District and Appeals Courts do not take the whole summer off.  In either instance, this case could potentially drag into 2017 at which time we will have a new President.  With a stay in place, the states merely have to run out the clock and keep their fingers crossed in November.  That is what makes the Obama administration so fearful.