In immigration case, a (perhaps short-lived) win for the Constitution

President Barack Obama used his "pen," seen here aboard Air Force One in November 2014, to try to make immigration law. The Supreme Court, for now, said he should have used his "phone." (Stephen Crowley / The New York Times)

President Barack Obama used his “pen,” seen here aboard Air Force One in November 2014, to try to make immigration law. The Supreme Court, for now, says he should stick to his “phone.” (Stephen Crowley / The New York Times)

For a little while longer, the separation of powers still exists in this country.

The short-handed Supreme Court on Thursday split 4-4 in a case about whether President Obama had the power as the executive to make law, a legislative prerogative. Because lower courts had found Obama acted improperly, their ruling stands and the order remains blocked.

The specific issue at hand concerned immigration enforcement, which Obama in 2014 tried to abridge unilaterally after previously stating no fewer than 22 times that a president didn’t have the power to do that kind of thing. But the subject is really beside the point. It was always a separation-of-powers case, not an immigration case, no matter how many sad stories are included in articles about this court ruling. It is possible to do something constitutional in an unconstitutional way, and it’s the court’s responsibility not to allow that.

But I said at the start of this post that separation of powers exists only for “a little while longer” because there were four justices who apparently were willing to discard that quaint notion to achieve their preferred policy. And there would have been a fifth such vote, had Obama’s nominee for the ninth spot on the bench, Merrick Garland, been confirmed.

This is not my speculation; Obama himself said it, in a revealing if irresponsible comment during remarks to reporters after the high court released its ruling. From Yahoo News:

“The decision in the case is ‘a very clear reminder of why it’s important for the Supreme Court to have a full bench,’ Obama said Thursday at the White House. ‘This is part of the consequences of the Republican failure so far to give a fair hearing to Mr. Merrick Garland.'”

Republicans ought to give Garland a hearing right now, solely to ask if the president was correct in his declaration about how the judge would have ruled in the case. After all, judicial nominees go to great lengths in their confirmation hearings to avoid saying how they’d rule on particular cases. Obama just spoke publicly for his nominee, betraying the same imprudent, cynical approach to governance and the separation of powers that he displayed in issuing the executive order at the heart of the present case.

Off the top of my head, the Roberts court has been fairly deferential to Congress’s power to enact laws and the executive branch’s power to implement those laws — as we saw in the Obamacare cases, for instance — while maintaining a short leash for the executive when it has wandered into the legislative branch’s territory (see not only this case, but the ruling about Obama’s recess appointments). Obama has indicated his nominee to replace Antonin Scalia would feel no such loyalty to our constitutional framework. One wonders whether the person(s) selected by Hillary Clinton or Donald Trump would be any different.

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32 comments
lvg
lvg

"""""""""""" Since January, the Army has accepted into the ranks 46 so-called "Dreamers," or people who have immigrated to the U.S. as children and qualify for President Obama's Deferred Action for Childhood Arrivals (DACA) program, according to retired Army Lt. Col. Margaret Stock.

And there are thousands more waiting to enlist, she said. 

Stock helped create a program that allows highly skilled legal immigrants to enlist in the military as a fast-track to citizenship.

The Army this year expanded that program from 1,500 enlistees per year to 3,000 per year, Stock said in an interview with The Hill on Wednesday. 

Though she said the expansion was in order to meet recruitment goals, it also allowed for those first Dreamers to enlist, because there was already a backlog of thousands of applicants. 

"Otherwise none of them would have been able to sign contracts because there were no spaces left," Stock said. 

The program will expand to 5,000 enlistees per year in October, she added. """


hehill.com/policy/defense/241271-army-enlisting-dreamers-as-congress-debates-immigration-action



I hear Kyle and  Lil Barry are volunteering to replace some of those illegal volunteers.

MarkVV
MarkVV

In the usual eagerness for big headlines, many journalists present the result of the Supreme Court case about immigration the way that is intellectually dishonest, with expressions like, from CNN, “Obama's immigration plan dealt big blow by Supreme Court ,” which makes it sound as if the Supreme Courtdecided against Obama’s executive order. It has done nothing like that. Half of the Supreme Court agreed with Obama, the other half decided against him. A tie is not a blow to one side. The fact that it leaves intact the decision of the lower court, one of the most conservatives in the land, does not change them fact about a divided opinion of the highest court in the land on the issue, in spite of its practical consequence.

Rick Staples
Rick Staples

Obama tried to work with both the House and Senate as to drafting bi- partision legislation. Guess the majority was too busy trying to figure out how to get rid of Trump.

lvg
lvg

I guess illegals who volunteer for US Army like my father in World War II, should forget about fighting for the US in order to get citizenship. I am sure there are many cons willing to take their place.A few right here on this blog.

Jefferson1776
Jefferson1776

The court problem is about to be solved for generations.

Lil_Barry_Bailout
Lil_Barry_Bailout

@Jefferson1776

So is the due process problem, the free speech problem, the free exercise of religion problem, the freedom of association problem, and the states rights problem.

Leftists have lots of problems with Our Constitution.

Rick Staples
Rick Staples

Little Barry Bailout? How about War for profit Bush? Amazing how people forget about that.

MarkVV
MarkVV

It is important to keep in mind that Kyle’s opinions is just that – opinion of a right-wing journalist, who believes that he is qualified to judge a constitutional case. In addition, Kyle takes it upon himself to make the judgment that the four justices voting in favor of Obama did that to achieve their preferred policy. Could it not be that the OTHER four justices did exactly that?

RafeHollister
RafeHollister

@MarkVV It could be that the OTHER four took their oath to uphold the Constitution seriously.

lvg
lvg

@MarkVV Kyle doesn't realize that INS  deportation judges always show leniency to children raised and educated here and if there are anchor babies in the family, nobody is getting deported so as  to leave American children behind. Republicans could fix that tomorrow if they want.


Last immigration bill Cons and Bush passed in 2008 was to allow illegals from Central America easy entrance into the US with due process rights.Most  are women and children who go on public assistance. 



Way to go hypocritical cons!

Lil_Barry_Bailout
Lil_Barry_Bailout

@MarkVV

There is no action your messiah Obama could take that you would not support.

Dog, meet lap.

RafeHollister
RafeHollister

I was absolutely shocked the other day when Justice Stephen Breyer voted with the conservatives in a 5-3 decision.  Before that I would have sworn the liberals on the court crossed their fingers when they took the oath to protect the Constitution and later took some secret oath to always block vote to support the proggie position.  The conservatives seem to disagree sometimes with intent of the Constitution, but they all can argue that their position is the proper interpretation, with the exception of Roberts, who seems to occasionally decide based on how the court will be viewed than what the Constitution says.  The liberals opinions don't seem to even try to justify why they decided why they did, just that it was the right thing to do, the Constitution be damned.


The Constitution seems to be under assault from the Courts and by the Dems in the WH and Congress.  Who would have ever thought the Dems would abandon due process and leave the ACLU having to align with the GOP.


If you want a government governed by the Constitution, you have to vote for Trump.  We know Hillary's position is to nominate folks who will support the proggie positions, regardless of Constitutional restraints.

xxxzzz
xxxzzz

@RafeHollister Breyer is a true liberal.  He will actually defend people against the government.  He and Scalia could see eye to eye on some of these issues.  The constitution is irrelevant to Ginsburg.

Caius
Caius

" Off the top of my head, the Roberts court has been fairly deferential to Congress’s power to enact laws..."

Off the top of my head I completely agree.  In particular, CJ Roberts has gone out of his way to defer to legislation passed by the people's representatives in a legislature. As I recall the week of the Obamacare "tax" decision there were 3 decisions dealing with legislative acts and CJ Roberts voted for the legislature on all three cases.


On the flip side I really do not care for the "judicial legislature" that results in way to many cases being decided by the Court acting as the legislature, see Scalia's New Haven firemen decision as my prime example.


And yeah, this case could be back before a 9 member Court. But I prefer the 535 members of Congress to make the decion not the 9 on the Court.  To date Congress, by their inactivity, has decided that what we have been doing for the past 30 years is acceptable. 


xxxzzz
xxxzzz

@Caius And that is a decision that should be respected by the courts and the president.

Lil_Barry_Bailout
Lil_Barry_Bailout

Congress HAS made a decision. It's embodied in existing law.

Lil_Barry_Bailout
Lil_Barry_Bailout

I'd love to know what the reasoning was among the four Democrat operatives on the court for ignoring Our Constitution.

Caius
Caius

@Lil_Barry_Bailout This is probably all we will know for awhile.

"SUPREME COURT OF THE UNITED STATES 

No. 15–674 

UNITED STATES, ET AL., PETITIONERS v. TEXAS, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[June 23, 2016] 

PER CURIAM.

 The judgment is affirmed by an equally divided Court."

Lil_Barry_Bailout
Lil_Barry_Bailout

@Caius @Lil_Barry_Bailout

There's little doubt that it boils down to the same reasoning Democrats in Congress use for ignoring Our Due Process.  They want what they want, Constitution be damned.

They'll use fancier words, of course.

Lil_Barry_Bailout
Lil_Barry_Bailout

@RafeHollister @Lil_Barry_Bailout

It's a living document.  It's so alive that you don't even have to bother to change it in order to determine that it makes "state" and "federal government" interchangeable, or to find a right to kill your unborn child while simultaneously denying the right to keep and bear arms.

Rick Staples
Rick Staples

And how did they ignore the Constitution? They have to interpret it in their rulings.

Wascatlady
Wascatlady

Where are your thoughts on Bush and his "signing statements?"

Kyle_Wingfield
Kyle_Wingfield moderator

@Wascatlady Nice deflection. I didn't say *all* executive orders are unconstitutional, or even that all of *Obama's* are unconstitutional. I said *this* one was.