April 18, 2016

The Supreme Court is hearing oral argument this morning on Obama's power over immigration policy.

From the NYT report:
Donald B. Verrilli Jr., the government’s top appellate lawyer... was sharply challenged by Chief Justice John G. Roberts Jr. and several of the court’s other members.

Justice Anthony M. Kennedy questioned whether the president can defer deportations for millions of people without specific congressional authorization, saying “that is a legislative task, not an executive task.” “It’s as if the president is defining the policy and the Congress is executing it,” Justice Kennedy said. “That’s just upside down.”...

[Roberts] pressed Mr. Verrilli on whether the president could simply deem all illegal immigrants to be legally present under the new policy. Mr. Verrilli, the solicitor general, said there are statutory constraints that would prevent the president from doing so....
The government lost below, so a 4-4 split would leave in place an injunction barring the policy. There had been some speculation that Justice Roberts might give a 5th vote to the pro-government side using a standing doctrine ground, but he said something that made that seem unlikely:
... Mr. Verrilli asserted that the state of Texas should not be allowed to challenge the president’s actions by claiming it would cost the state money to give driver’s licenses to the millions of immigrants affected by the federal policy. Mr. Verrilli argued that Texas could simply change its law to deny driver’s licenses to the immigrants.

“You would sue them instantly,” Chief Justice Roberts said as he repeatedly questioned the government’s arguments.

34 comments:

Ignorance is Bliss said...

... Mr. Verrilli asserted that the state of Texas should not be allowed to challenge the president’s actions by claiming it would cost the state money...

I'm surprised he didn't argue that while it would cost the state money, such a cost was actually a tax, and therefore constitutional...

TreeJoe said...

Does Mr. Verrilli ever get to argue a valid and easily defensible position?

Every single time I read his arguments, they sound so specious. So, "I have to make this argument because it's my job and this is the best I could come up with..."

Qwinn said...

I assume that all speculation will be about how the 4 "extremist conservative" justices will vote, while no one has any question at all as to how the 4 "moderate nonpartisan" liberal judges will vote. As usual.

Hagar said...

Any recognition of an illegal alien - Federal, State, or local - without arresting and deporting the alien, is a de facto acceptance of the alien's presence in the country.

Tank said...

TreeJoe said...

Does Mr. Verrilli ever get to argue a valid and easily defensible position?

Every single time I read his arguments, they sound so specious.


This is because you are not a wise Latina.

traditionalguy said...

It's a simple issue. Obama is either our duly elected King or he is not.

David Begley said...

Obama is simply lawless. That's his legacy.

SteveR said...

"upside down" Yep

n.n said...

Obama backs anti-native policies that provide incentive to progressive dysfunction in second and third-world nations, including his "refugee crises", reactive parenthood of the female chauvinist revolution, and planned parenthood by #CecileTheCannibal et al.

Excessive immigration is also good for creating democratic leverage and to compensate for market and economic distortions caused by liberal fiscal policies.

Bruce Hayden said...

I think that it is standing or nothing here. The President, et al. made significant changes to federal policy, and didn't bother going through the Notice and Comment required by the Administrative Procedures Act (APA). If they get away with it here, then there are essentially no limits to what the federal govt. can do through whim and the stroke of a pen. The APA isn't that helpful - agencies routinely publish what they want to do, and essentially ignore any adverse comments. But, without the APA, there isn't anything really constraining what they can do. Which is why I expect that if there is an opinion adverse to the govt., or even a stalemate (which the states would win, having won below), it will be on the violation of the APA.

holdfast said...

Nice to see that Barry may have finally pushed Roberts and Kennedy too far. 4-4 is not the rebuke I'd like, but it's better than nothing.

I know Roberts is supposed to be a stickler for standing, so it's nice to see him acknowledge reality. I wonder if he thought that allowing O-Care as a tax would usher in an era of mutual respect between the USSC and the Executive. I guess that learned him - hopefully it sticks.

holdfast said...

"This is because you are not a wise Latina."

. . . . and Tank wins the Internetz for today.

Bay Area Guy said...

An extra Prayer for a 4-4 tie on this one.......
And, God Bless, the 5th Circuit.......

David Begley said...

Funny how nearly everyone assumes a 4-4 split, that is, a purely political decision. I will be interested to read the RBG wing's rationalization.

Levi Starks said...

If by some stroke of luck a Republican were to be elected as our next president, you'll suffer a serious case of whiplash trying to watch how quickly the supreme court pulls in the reins of presidential executive action.

eric said...

Levi is right. It'll go from a split, to unanimous pretty quickly.

Birkel said...

I detect an Althousian theme.

Political opportunism is a good theme.

HoodlumDoodlum said...

So, again I ask, when are unfunded mandates so bad that they raise Constitutional issues? It really seems to vary, doesn't it?

StephenFearby said...

The Heritage Foundation's Paul Larkin has what I think is a terrific article on the historical origins of the "Take Care Clause" (going back to Magna Carta).


April 15, 2016
A New Approach to the Texas v. United States Immigration Case: Discretion, Dispensation, Suspension, and Pardon—The Four Horsemen of Article II

"...This is a case where the text of Article II alone cannot answer the question whether the DHS policy is lawful.[18] Also illuminating is the English legal and political background to Article II. That history reveals a deliberate attempt to cabin the power of a chief executive to those instances that implement the authority that the Framers or Congress have vested in the President. In particular, that relevant history reveals two implicit but clear limitations on the President’s authority: The President cannot dispense with the application of the law for particular people, and he cannot suspend the operation of a law in its entirety. Accordingly, whether the DHS policy is lawful can be answered only by defining the channel in which a President may act...."

'...In one regard, the Colonists’ understanding of “the rule of law” sharply diverged from the English view. By the time of the American Revolution, the Colonists distrusted Parliament as much as, if not more than, they distrusted King George III. The Colonists believed that “men and especially men in power are prone to corruption” and that Parliament could be as arbitrary as the King.[60] “The danger to liberty was what it had always been: departure from the rule of customary law” in favor of “a rule of arbitrary command.”[61] “The difference,” as NYU Law Professor John Phillip Reid argues, “was that now a House of Parliament, not just the Crown, had to be watched.”[62]...'

'....The Due Process Clause in the Fifth Amendment implements the rule of law.[65] The lineal descendent of Article 39 of Magna Carta, that clause, whatever else it may require, obliges the government to act lawfully. Over time, we have forgotten that core meaning of due process because the Supreme Court has been working around (and beyond) its periphery by expanding its reach to require the government to provide hearings before suspending government benefits[66] or to forbid the government from interfering in certain private decisions, such as abortion.[67] But the irreducible meaning of the Due Process Clause is that the executive must comply with the law.[68] In the United States, the law is sovereign because ours is “a government of laws, and not of men.”[69]'


http://www.heritage.org/research/reports/2016/04/a-new-approach-to-the-texas-v-united-states-immigration-case-discretion-dispensation-suspension-and-pardonthe-four-horsemen-of-article-ii

As a purportedly devout constitutionalist, Cruz would seem both to appreciate and be guided by this limitation. Trump, not so much.


The Drill SGT said...

Stephen beat me.

The Hill had a better article than the NYT. It closes with:

The court asked both parties to argue an additional question in their briefs — whether the immigration programs violated the Take Care Clause under Article II of the Constitution, which directs the president to take care that the laws are faithfully executed. That move signaled the justices are determined to settle the case, though the question was never raised during oral arguments.

The Drill SGT said...

Bruce, beyond Standing and the APA, isn't there also a place for the fiscal argument?

the WH argument seems primarily to be the classic resource allocation and discretion one. One can understand that the Executive has limited resources and has to chose whom to deport, but DAPA requires that the Feds spend money, that was not appropriated for that purpose by Congress. Thus it lacks the resource rationing argument normally made by Democrats. The same sort of thing that they did on Obamacare...

HoodlumDoodlum said...

From the NYTimes article: Justice Sonia Sotomayor said that about 11 million immigrants live “in the shadows.”

“They’re here whether we want them or not,” Justice Sotomayor said.


I can't tell you how fed up I am with the selective use of that argument. How the hell does it not apply elsewhere? How many AR-15s or other "assault-style" weapons are there in the US today? 8 million? 10 million? Probably more, now. Doesn't that mean, using the Wise Latina's argument re: # of illegal immigrants, that it's somehow wrong to propose or pass laws that would ban or outlaw those weapons? I mean, there are SO MANY of them, Mrs. Justice!
Hell, using the Left's logic ("logic") it wouldn't even be permissible to pass lows to slow down the production of those kinds of weapons (you know, since passing any kind of border control is racist and illegal)!
Somehow the "facts on the ground" arguments never seem to work when they cut against Leftist values. Must be a coincidence, though, since obviously only Right-leaning judges vote on ideological grounds.

HoodlumDoodlum said...

By the way, you have to love the premise behind DAPA, don't you? I mean, with DREAM and DACA the argument was that it would be wrong to punish children for illegal things their parents did. With DAPA the argument is that we can't enforce the law and thereby punish the parents who did illegal things because they have kids (American citizen kids, you know).

DACA was alleged to apply to about 2M people.
DREAM was to have applied to about 1M people (using, I think, the 2010 version).
DAPA apparently applies to about 7M people.

Add to all of that, of course, some multiple for chain migration (even the most restrictive will allow eligible people to eventually sponsor green cards for others) and for what will be pretty massive amounts of fraud (how will you prove that you were physically present in the country on or before a given date--and why would the reviewing agencies who will be directed to approve as many as possible actually care to review strenuously?). But, hey, what do numbers mean when the President has a pen and a phone...

HoodlumDoodlum said...

"They're here whether we want them or not." A sitting Supreme Court Justice said that, proudly I assume.
A paraphrase would be "people have broken the law, that's a fact whether we like it or not." So the fact that people have broken the law (and, you know, continue to do so) is given as an argument that some extra-legal action can be taken to reinforce that lawbreaking? That's incredible!
Think about it--with Prohibition the argument was "no one is following the law so the law should be changed." Ok, fine, that's not great maybe but it means the nation at least followed the normal "rule of law" framework when making and changing laws. Here the argument is "people are breaking the law, so instead of changing the law (which we've been unable to do because of those darn lawmakers) we're going to force in a program that partially rewards the lawmaking. We're not going to change the law, but we're going to make it difficult or impossible to punish people for breaking that law anyway."
Again--that argument isn't from some pandering politician, but from a SUPREME COURT JUSTICE. I'm serious when I ask: what the hell happened to this country?

Theranter said...

Hoodlum: "From the NYTimes article: Justice Sonia Sotomayor said that about 11 million immigrants live “in the shadows.”
“They’re here whether we want them or not,” Justice Sotomayor said."

Ooo I despise her (partly for a personal reason not worth mentioning) mainly because she is neither wise nor smart enough to be on the court. She's an embarrassment.

And let's apply her thinking to unborn children--"they are living in the shadows--they are here whether we like it or not."
Bet she wouldn't like that one. It's not like returning undocs to their home country to wait in line as my grandparents did is as severe as never giving someone the chance to make it anywhere on the face of the earth.

IMHO, if the un-birthcertificated has made it 30+ weeks "in the shadows, and there whether we like it or not" tough shit lady, buck up for a few more weeks and nature will apply its laws through an organic process that is better for you and the child. Within minutes, you can sign a legal document that resolves your "problem" ever after and gives it to someone that wants one of those problems from the shadows. It's a win-win-win.

holdfast said...

If Obama's grossly illegal actions stand, I expect President Trump or Cruise to immediately repeal the Hughes Amendment and many other parts of the NFA by Executive fiat. Then we can create millions of new facts on the ground.

Birches said...

I wonder if he thought that allowing O-Care as a tax would usher in an era of mutual respect between the USSC and the Executive. I guess that learned him - hopefully it sticks.

This.

Also, what does a 4-4 split do? I'm guessing other states have said DACA was a-ok, right?

The Drill SGT said...

Also, what does a 4-4 split do? I'm guessing other states have said DACA was a-ok, right?

a 4-4 leaves in place the restraining order by a Federal Judge across the entire US, until he conducts a trial on the facts.

Then it will go to Appeal, then back to SCOTUS in 2018. If the current POTUS then issues a new Order

jacksonjay said...

"There had been some speculation that Justice Roberts might give a 5th vote to the pro-government side using a standing doctrine ground, but he said something that made that seem unlikely: ..."


Bwhahahahahhahahahahhahah!

George Grady said...

Levi Starks said...

If by some stroke of luck a Republican were to be elected as our next president, you'll suffer a serious case of whiplash trying to watch how quickly the supreme court pulls in the reins of presidential executive action.

Perhaps Republicans should seriously consider this as a strategy. Deliberately overstep in order to get slapped down and get the rulings on the record. That'd be a fine line to walk, though.

BN said...

Law is just a social construct.

BN said...

It isn't real.

Bruce Hayden said...

the WH argument seems primarily to be the classic resource allocation and discretion one. One can understand that the Executive has limited resources and has to chose whom to deport, but DAPA requires that the Feds spend money, that was not appropriated for that purpose by Congress. Thus it lacks the resource rationing argument normally made by Democrats. The same sort of thing that they did on Obamacare...

The federal resource allocation argument is something that bothers me. But, I don't think that it is part of the case right now. On the flip side, Texas, at least, is arguing that the federal government is commandeering state resources, forcing them to pay for those licenses and IDs that would now be required. And, at least up to now, the feds cannot commandeer state resources. They can use a carrot and/or stick, as they did with the 55 MPH speed limit, drinking age of 21, and ObamaCare in several places. But, they cannot tell the states to spend money. Which is the big justification here for standing. Not where you were going, but...

Bruce Hayden said...

By the way, you have to love the premise behind DAPA, don't you? I mean, with DREAM and DACA the argument was that it would be wrong to punish children for illegal things their parents did. With DAPA the argument is that we can't enforce the law and thereby punish the parents who did illegal things because they have kids (American citizen kids, you know).

Call those kids what they are - "anchor babies". The women come across the border to have their babies, and now they, along with their entire family, can stay, thanks to DAPA.