Monday, April 18, 2016

SCOTUS appears split over Obama's lawless executive amnesty

"It's as if the president is setting the policy and the Congress is executing it. That's just upside down." ~ Justice Anthony Kennedy
As if? PRECISELY! Oh, how Justice Scalia is missed...

Oral arguments began today on the fate of American sovereignty vs imperial presidency...
NewsMax: The U.S. Supreme Court appeared closely divided on Monday as it weighed whether to revive President Barack Obama's plan to spare from deportation roughly 4 million immigrants in the country illegally, raising the possibility of a 4-4 deadlock that would block the program.

Based on questions asked during the 90-minute oral argument in a case that tests the limits of presidential powers, the court's four liberal justices seemed poised to back Obama while the four conservatives were more skeptical.

The court is evenly divided with four liberals and four conservatives following the February death of conservative Antonin Scalia. That raises the possibility of a 4-4 split that would leave in place a 2015 lower-court ruling that threw out the president's executive action that bypassed the Republican-led Congress.
And it's time for the SCOTUS to backup the lower court ruling and DEMAND the executive enforce law, not create fiat.

Related link: U.S. top court appears unlikely to revive Obama immigration plan

As Josh Hammer eloquently describes, this is about Texas defending U.S. Sovereignty on behalf of the states versus Obama ripping apart separations of powers, federalism and once again attempting to neuter the Constitution...
TheResurgent: U.S. Supreme Court oral argument took place today in the high-stakes U.S. v. Texas case. The case is about the scope of the President’s “prosecutorial discretion” power to confer de facto lawful status and sundry government benefits upon roughly one-third of all illegal aliens presently in the country. The U.S. Court of Appeals for the Fifth Circuit ruled last year that the program — officially known as DAPA, and frequently referred to as Obama’s executive amnesty — violated the Administrative Procedure Act, and affirmed the trial court’s preliminary injunction. Upon deciding to hear the case, the U.S. Supreme Court added the intriguing constitutional question of whether the executive amnesty additionally amounts to a violation of Article II’s Take Care Clause — that is, the duty that the President “shall take Care that the Laws be faithfully executed.”

When DAPA was pronounced seventeen months ago, I argued that the program wildly abused any preexisting norms of “prosecutorial discretion,” and specifically urged House Republicans to — at minimum — publicly ponder filing formal articles of impeachment. For law buff readers, I’d highly recommend reading this amicus brief on the Take Care Clause inquiry, filed by my friends Josh Blackman of South Texas College of Law and Ilya Shapiro of the Cato Institute.

The stakes in this case are, frankly, enormous. Barack Obama repeatedly denied he had the authority to do what he did here, pretty much right up until the November 2014 unilateral decree. That it is even a live question as to whether or not the President possesses this power speaks volumes as to just how imperial — and, indeed, lawless — the Executive Branch has become under Obama. The President has historically enjoyed far greater discretion in the realm of foreign affairs — where “secrecy” and “dispatch” are most acutely needed, as Alexander Hamilton argued in Federalist No. 70 — but it is much more intuitive and natural to think of immigration as being more inherently domestic in nature. And the Supreme Court has long recognized congressional plenary power over immigration, consistent with Congress’s Article I § 8 prerogative to “establish an uniform Rule of Naturalization.”

Quite simply put, if the Court upholds DAPA, the Take Care Clause will be rendered a superfluous nullity, and future Presidents will have nearly limitless discretion to stretch and abuse “prosecutorial discretion” to choose which laws to enforce and not enforce according to their idiosyncratic whims. Such unfettered discretion would, for instance, directly abet unprecedented politicization of the IRS. And regarding DAPA, Hillary Clinton and Bernie Sanders are both on record as supporting an increase in the mass amnesty’s breadth. When you have a “pen” and a “phone” — not to mention a politically powerful and eager open-borders lobby — who needs Congress? ...

Conservatives should keep an eye on this case. In a term filled with many blockbuster cases, U.S. v. Texas might just be the most important of them all. Justice Scalia’s death looms large over the proceeding, and a 4-4 split is a distinct possibility. Given the Fifth Circuit’s affirmation of the district court’s preliminary injunction, such a split would not be the end of the world.
It'd be a saving Grace in the absence of Antonin.

Related link: full transcript of the oral argument

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