June 23, 2016

The Supreme Court affirms United States v. Texas — Obama and immigration — by an evenly divided 4-4 decision.

SCOTUSblog reports: "This means that the enforcement of the Obama admnistration's [sic] 2014 deferred-action policy remains blocked by a nationwide injunction."

There's nothing from the Supreme Court to read, just: "The judgment is affirmed by an equally divided Court."

Here's my blog post from the oral argument last April. The question was about standing, whether the states have a good-enough injury to make it a real "case" within the meaning of Article III of the Constitution.
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.
So the outcome today is what the argument made me think would happen.

ADDED: It's very good, I think, to have this policy frozen in place as we go through the election where immigration is a big issue. 

AND: Here's Adam Liptak's coverage in The NYT, with the background on Obama's plan, Deferred Action for Parents of Americans and Lawful Permanent Residents.

42 comments:

cubanbob said...

This is reason enough to vote for Trump. He won't be nominating lefty judges. Maybe the #nertrumpers might get a clue. If all Trump does as president is nominate non-ideological judges that alone would be good enough.

David Begley said...
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tim in vermont said...

How many troops does the Supreme Court have, is, I am sure, the question crossing Obama's mind right now.

mccullough said...

Scalia's death has made the job of the rest of them easier in these 4-4 cases. Hit the beach earlier this year

David Begley said...

Obama will ignore this case. Follow the House Dems and just act lawlessly.

Who stops Obama? US Marshals? The FBI? Congress? He's historic.

eric said...

Until #NeverTrump gives us Hillary.

Then she can pack the court and rule with her pen and her phone.

Hagar said...

Is that the policy that Obama sent out a memo about advising all border agencies that any officials who did not follow his policy could expect "personal consequences"?

Fernandinande said...

4-4 decision

A nice even 50% of the government lawyers were wrong.

Unknown said...

So.

What are the checks on the President, ultimately? He can ignore the Supreme Court if he wants. Congress could, in theory, impeach.... but what Democrat would ever vote to impeach Obama, on any ground? He could literally hand over the suitcase with our nuke codes to Raul Castro live on national TV and they would still cheer him. Same with Hillary: she could hold "Live lesbian aztec orgy night" every week where she personally rips out the beating heart of the poor girl who was just forced to service Hillary and then devour it, again live on C-SPAN each week and the Democrat party would be aghast at the very idea of impeachment.

So that leaves the actual literal federal government itself as the ultimate check--refusing the orders of the President. Can you imagine Teller or Groves just signing off on FDR ordering the nuke to be used on, say, Salt Lake City? Of course not. Nimitz, Eisenhower, all those high level guys--heck, even the civilian side like Stinson wouldn't have let FDR do whatever he wanted.

Today? Today the entire government, save the military, is so far left wing and so full of treasonous bastards that they view the American people as the primary enemy. The EPA tried to poison all the people living downstream of that mine. If Obama ordered a nuke to be dropped on Salt Lake, there would indeed be resistance... 1) Salt Lake is the leftwing place in Utah, so his people would suggest a different city and 2) they would worry for a bit about fallout... but if the wind was blowing towards Texas, who here would think Obama wouldn't pull the trigger? If he thought he might get away with it, I mean? Like a plausible-isa reason, so the Democrats had a fig leaf of cover? Who in the Federal system would disagree with him--besides lower ranking military, I mean?

Note that the military is the one place for conservatives in the federal government. Completely and surely as a result of that, it's also the one federal agency the left tries to get rid of.

If the military was full of liberals and leftists, you can bet they would never ever talk about cutting the military. And we all know it.

No, we've lost the last remaining check on the president: the actual federal agencies telling him where to go when he issues his illegal, unconstitutional orders. Note that the same is true of Hillary.

Trump, on the other hand? I'm pretty sure that the federal government will practically rise up in open rebellion against him. Which is why I'm not too worried about what damage he can do: the MSM and the bureaucrats will never, ever let any Republican president do much of anything.

--Vance

n.n said...
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PB said...

Fairly meaningless outcome. It's not as if Obama is going to actually deport more people, but any incentive to people to immigrate legally or not at all is good.

bagoh20 said...

Ya know it's kind of hard for us hillbillies to figure out what this actually means from that headline and even most of the rest of it. When you say the government won or lost, does that refer to the the State, the Federal, the laws of the nation, or the lawlessness of the Administration? All are government. We don't all follow this stuff like it's American Idol.

n.n said...

The administration seems woefully uninterested, and, in the case of the "refugee crises", supportive, of the causes for mass exodus from second and third-world nations, and nations broken with its active consent. Then there are the violation of American civil rights, and its rationalization and legalization of the selective-child policy under the State-established Pro-choice religious/moral doctrine.

BDNYC said...

The liberals on the Court are just shamelessly pro-administration. Do they really believe there should be so much executive discretion that the president can basically un-write laws? I think not.

Nonapod said...

Glad there's still a modicum of sanity left in the court, but I wonder if it'll matter to this lawless administration.

It seems absurd, but the thinking amongst progressives seems to be that any human being on that planet deserves to be able to benefit from the US taxpayer and be able to vote in US elections without any restrictions at all. So whether your a rice farmer in rural China, an Iranian Mullah, or a Sudanese warlord, you should have the right to help select the next US President and collect a Social Security check if you're old enough. Or am I wrong?

PB said...

Well, hold your horses. If Obama can't do this en masse, he certainly can do this individually. All he needs is a database with the 4 million names and those computer generated executive orders will be in the mail in days.

The Drill SGT said...

mccullough said...
Hit the beach earlier this year


Other than seeing John Roberts in shorts (Ann screams :), the concept of the rest of the court on the beach makes me shudder :)

The Drill SGT said...

As for the actual case, I think that Feisty Texas District Judge (Andrew S. Hanen) has the measure of the DoJ lawyers and their DHS Client. I doubt he will be fooled again...

Amadeus 48 said...

What makes you think the senior levels of the military are conservatives at this point? Obama has been appointing senior officers for eight years. Political generals know which way the wind blows.

Meeeea said...

@10:26, I wouldn't mind seeing Alito in shorts. (Sorry Prof. A.)

HoodlumDoodlum said...

Ann Althouse said...ADDED: It's very good, I think, to have this policy frozen in place as we go through the election where immigration is a big issue.

But Professor, just a few minutes ago you said (of a different case) Those of you who are disappointed by this decision should consider that it advantages your side of the political argument.
Isn't that true here, too?

David Begley said...

Obama is ignoring the Fifth Circuit, " they remain low priorities for enforcement."

David Begley said...

Obama, "Those people who show up are Americans."

New policy. Just show up. You are a citizen.

He completely ignores the law.

Larry J said...

Amadeus 48 said...
What makes you think the senior levels of the military are conservatives at this point? Obama has been appointing senior officers for eight years. Political generals know which way the wind blows.


For a long time, people had to be very political to get promoted to general or admiral. Obama has been behind the promotions of a high percentage of the flag ranks. From conversations with coworkers who still serve in the reserves, the military is very PC. The diversity officers are the American equivalent of the old Soviet political officers. It'll take a long time to undo the damage has done to the military. I come from a family that has several generations who've served in the military. I'm going to actively discourage my grandchildren from joining. When the emphasis is on PC instead of combat effectiveness, the powers that be are going to get a lot of troops killed. My family has done our part. It's someone else's turn.

Amadeus 48 said...

Larry J--Thanks for the information. It confirms what I have been thinking.

JCC said...

Ming the Merciless just gave a speech in which he said - I think - "So what?" about this ruling. "Nothing will change." was what I heard.

Lots of "If Congress won't act" as justification from those who do't get how government is supposed to work, an opposition party, all that.

Brando said...

Without reading the opinion, does it open the door for the president to practice selective enforcement so long as he isn't too obvious about it? Because I fully expect Trump or Hillary to have no qualms about abusing their power this way, taking a tip from Obama.

To Obama fans I say, it all sounded nice to you when it was your guy pushing policies you liked. But the precedent it sets can just as easily be used against you.

David Begley said...

Obama said that the people who would benefit from his Executive Order would not be a priority for deportation.

Obama wins. That's his work around.

Obama ignores laws he doesn't like.

furious_a said...

And people complained a 4v4 Supreme Court would accomplish nothing. Silly people.

Bushman of the Kohlrabi said...

As expected, CNN is all concerned about how this impacts Obama and his legacy. As usual, there's no concern about what's best for the country.

Matthew Sablan said...

I saw that Obama is "heartbroken" about this decision.

What happened to "It's The Law?" Which is another reason I don't like debating too much with the left: Goal posts and standards both move. Frequently and erratically.

SukieTawdry said...

This ruling is as expected (or, at least, the best I could realistically hope for). I do think, like it or not, the Executive has discretion in enforcement matters. My main problem with Obama was that he seemed to think handing out SSN's and work permits was part and parcel of "enforcement."

Bruce Hayden said...

I think that some may be misreading CJ Roberts and his judicial philosophy. The big decisions where he has been on the Dem side have tended to be 6-3 decisions, where he was presumably the non-critical 6th vote. The conservatives had already lost Jusice Kennedy. The key thing is that as CJ, he gets to pick who writes the decision (or dissent) that he is on, and in these cases, he has assigned himself. My reading of those cases is that they tend to be much narrowly written than if one of the leftists on the Court had written them, and I think that was his intent when switching sides - to get control over the writing of the decisions. And this would seem to comport with this hypothesis.

Unknown said...

Obummer is heartbroken--cool!!

Now he knows how I have felt for the last eight years.

I don't really think he is heartbroken, though.

Bruce Hayden said...

Actually, the interesting result here is that while the Obama Administration has some enforcement discretion, they don't have as much discretion as they took upon themselves here. Enforcement discretion is designed for the low end of the food chain, where immigration judges can take into account individual circumstances. Here was just the opposite, with the Administration removing low level discretion in favor of a single nationwide standard. Which is closely akin to rule making, but done without regard to conforming the rule making to federal low (notably the Notice and Comment provisions of the Administrative Procedures Act (APA)). What they got caught doing was bypassing APA requirements for rule making by calling it "discretion". The courts were not fooled.

Unknown said...

Just a word in defense of Justice Kennedy. For the most part, where he has jumped ship from the justices on the right, it has often been in favor of individualism--the right of an individual to live his or her life as that person sees fit unconstrained by social mores or customs that have been lent the force of the state through law or regulation.

In the Texas case, he is letting the university construct its classes as the university sees fit. The thought that the US Supreme Court has to take on the role of the admissions committee at major state universities is depressing. The universities are making their own beds and they are going to have to lie in them. So far, the leadership of many state universities looks terrible (Mizzou, Clemson), and others look great (Ohio State).

It turns out that many minority students didn't want to attend integrated schools after all (see African American cultural centers and cultural dorms). The rationale for affirmative action in higher education is that all students benefit from a mix. You could call it the "Wise Latina" argument. But the fact is that no one has this figured out very well. You want to admit on test scores? Hello Asians and Jews, you white folks are fill-ins, good-bye blacks and hispanics. That isn't the right answer, either.

In sum, this admissions process is a big, arbitrary mess. Why should the Supreme Court be the ultimate referee? Better to let the schools figure it out themselves (with guidance from the state legislature (in its appropriative and funding mode).

Charlie said...

The cases are interesting, but I'm even more interested to know why you would [sic] "admnistration's" when it seems so much more economical to just add the "i" to an obvious typo? Is this just a professorial twitch?

cubanbob said...

Suppose the Texas Legislature simply decides affirmative action is no longer a consideration or a compelling State interest for it's Universities? Suppose President Trump decides on balance that affirmative action isn't a compelling Federal government interest and orders the Dept. of Education to cease efforts to impose it's views on affirmative action? The courts really lack the ability to see the logical conclusion of their illogical rulings.

harrogate said...

#BeckyWithTheBadGrades

HoodlumDoodlum said...

Yeah, attack that young woman using sexist and racist tropes, harrogate; get 'er!

Mick said...

To think that 4 "justices" ruled that Obama has the power to over-ride US Immigration law is a travesty in itself.

Michael K said...

"Trump, on the other hand? I'm pretty sure that the federal government will practically rise up in open rebellion against him. Which is why I'm not too worried about what damage he can do: the MSM and the bureaucrats will never, ever let any Republican president do much of anything. "

I agree and also agree with Larry that the military upper echelons are being filled by Obama with PC drones.

A friend of mine was passed over for a star after Gulf War I. He had gotten a "damned with faint praise" OER from his commanding general who was jealous because Bahrain had given Manfred, who was group commander, a big gold medal for saving them from Saddam. The wing commander got his revenge the next year and Manfred retired.

A couple of years ago he sold the company he founded to 3M for $23 million. The Marines cashiered the general a few years later for flying his girlfriend around in a Marine Corps plane.