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Law & the Courts

SCOTUS Hears Arguments in Executive Amnesty Case

I left today’s Supreme Court oral arguments in the Texas lawsuit against Obama’s lawless 2014 amnesty decree more firmly of the opinion that the court will split 4-4, thus upholding the injunction against launching the DAPA program that would issue work permits and Social Security numbers to millions of illegal aliens.

I’m sure that as a general rule it’s true you can’t know what the court will do from the justices’ questions. But it was pretty obvious (here’s the transcript) that the four Democratic justices will rule for their administration. I had hoped at least one of the liberals would be sufficiently sobered by the words “I, Donald J. Trump, do solemnly swear…” that they would flinch from approving Obama’s power grab, since it would set a precedent for his successors. But there seems little chance of that.

The only question is whether all four non-liberal (sort of) justices will vote to uphold the circuit court’s ruling that Obama’s executive amnesty program has to remain on hold until the case is fully litigated in the lower courts on the merits (the case so far has been about whether the temporary injunction issued by the district court should stand). Thomas didn’t speak, as is his practice, but both Alito and Roberts grilled Obama’s Solicitor General. At one point Roberts said:

When …­­ the President announced DACA, the predecessor provision [to DAPA], he said that if you broadened it –­­ this is a quote, “Then, essentially, I would be ignoring the law in a way that I think would be very difficult to defend legally.” What was he talking about?

Solicitor General Verrilli’s response was unintentionally hilarious:

maybe he thought he couldn’t extend it at that time to DAPA. But, you know, what happened here is that the President and the Secretary [of DHS] went to the Office of Legal Counsel and asked for an opinion about … the scope of this discretionary authority, and they got one. And they exercised it consistently with that and up to the limits of that and no further.

So, Mr. Constitutional Law Professor was set straight by some lawyers at DOJ. Well, I’m persuaded.

But, as usual, the fate of the Republic rests on Justice Kennedy’s shoulders, and he did not seem sympathetic to the administration’s case:

What we’re doing is defining the limits of discretion. And it seems to me that that is a legislative, not an executive act. … ­the briefs go on for pages to the effect that the President has admitted a certain number of people and then Congress approves it. That seems to me to have it backwards. It’s as if…the President is setting the policy and the Congress is executing it. That’s just upside down.

Of course, my SCOTUS Kremlinology plus $4 will get you a cup of coffee at Starbucks. So here’s some more speculation – what are the likely political consequences of a ruling either way? As I said to the Post, whichever side wins in court, it will likely be the other side that will be most energized politically. But I think there would be a difference in intensity.

If Texas wins, the case will not be over – it will return to the district court for trial and continue on for months. So while a defeat will be loudly decried by the anti-Constitution side, it might nonetheless translate into less of an imperative to get out the vote. But if Obama wins, the only option left to the pro-Constitution side is political, because he will start issuing work permits to illegals as fast as the laminating machines can crank them out, in an attempt to create facts on the ground. The desperation to stop Hillary (who has promised to continue and expand Obama’s gutting of American sovereignty) if the administration wins this case would dwarf any disappointment the lefties would feel if the ruling goes the other way.


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