Bench Memos

U.S. v. Texas Shows Why We Should Thank Republican Senators For Holding the Line on Garland

When Majority Leader Mitch McConnell and his Republican colleagues in the Senate decided not to proceed on a nomination to replace the late Justice Scalia, they raised the stakes in the presidential fight and kept faith with the voters who elected them to push back against an unpopular and increasingly lawless president.  Today, McConnell’s plan resulted in a victory for constitutional limits on the presidency and prevented a unilateral grant of amnesty to millions of illegal immigrants.

Today the Supreme Court announced that it had split 4-4 in U.S. v. Texas, the case challenging President Obama’s attempt to unilaterally rewrite immigration law. That leaves the Fifth Circuit’s opinion in place, which means the DAPA immigration action doesn’t go into effect.

In the case of a split vote, the Court issues no decision, so there is no reasoning to analyze.  If Merrick Garland were sitting on the Court today, the result would have been very different.

One of the hallmarks of Garland’s jurisprudence is his deference to the executive.  It’s what makes senators from West Virginia, Pennsylvania, and McConnell’s own Kentucky so concerned: He is almost certain to green-light the EPA’s war on coal that will come before the Court as early as next term.  It’s what worries business groups: He appears to be firmly in the pocket of the NLRB and Big Labor.  And some people even claim that this deference makes him a moderate, because he often sides with the government in criminal cases. 

But deferring reflexively to one of the branches of government that you’re supposed to be scrutinizing isn’t a sound judicial philosophy.  It’s abdication of the judicial role. And to have someone who is content to let a president or even unelected bureaucrats rewrite the laws passed by our elected representatives in Congress would be a constitutional disaster.

Leader McConnell, Senator Grassley, and all the GOP Senators who have stood firm on this nomination should get much of the credit for today’s decision.  They have upheld their own oaths to support and defend the Constitution, and deserve our thanks.​




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