Supreme Court

Supreme Court Agrees to Hear Texas Challenge to Obama's Executive Action on Immigration

U.S. v. Texas heads to SCOTUS.

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Credit: WhiteHouse.gov

Today the U.S. Supreme Court agreed to hear oral arguments in the case of United States v. Texas. At issue is President Obama's controversial executive action on immigration, a program officially known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The underlying legal dispute is whether the executive branch's implementation of DAPA runs afoul of the public notice-and-comment procedures required of all "substantive" administrative agency rules under the Administrative Procedure Act. In its order today, the Supreme Court also announced that it would consider whether Obama's executive action on immigration violate Article II, Section 3 of the U.S. Constitution, which requires that the president "take Care that the Laws be faithfully executed."

The White House maintains that its immigration action is merely a "policy statement" and is therefore exempt from normal federal rulemaking procedures and requirements. But in November 2015 the U.S. Court of Appeals for the 5th Circuit took a different view. "At its core," the 5th Circuit wrote, "this case is about the [Obama administration's] decision to change the immigration classification of millions of illegal aliens on a class-wide basis. The states properly maintain that DAPA's grant of lawful presence and accompanying eligibility for benefits is a substantive rule that must go through notice and comment, before it imposes substantial costs on them, and that DAPA is substantively contrary to law." As a result, the 5th Circuit blocked the White House from implementing DAPA.

The U.S. Supreme Court will now decide whether or not Obama's executive action on immigration will be allowed to proceed and whether or not Obama has exceeded his lawful authority under the Constitution.

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  1. …violate Article II, Section 3 of the U.S. Constitution, which requires that the president “take Care that the Laws be faithfully executed.”

    To which other branch will the court rush to show deference?

  2. The White House maintains that its immigration action is merely a “policy statement” and is therefore exempt from normal federal rulemaking procedures and requirements.

    “‘Policy statement’ ??. Yeah, *that’s* the ticket!”

    1. Is that all encompassing like the Commerce Clause? Next Policy Statement: I am king.

    2. I wonder if “Policy Statement” qualifies as rational basis. I also wonder if FDR’s mass internment of the Japanese was a policy statement.

      Both presidents were/at war, one with the Axis, the other with an idea (or drugs, take your pick.)

      I need a constitional law scholar to……wait a minute!

  3. You know who else took action against the US government?

    1. Other Texans?

    2. Hedey Lamarr?

    3. John Brown?

    4. Steve Eisman, Michael Burry and Greg Lippmann?

    5. Intrade.com?

  4. John Roberts wakes up once more beside a horse’s severed head.

  5. Why isn’t this being considered under Article I, Section 8?

    “The Congress shall have power:

    . . . .

    To establish an uniform Rule of Naturalization”

    —-Article I, Section 8, U.S. Constitution.

    The power of the President to arbitrarily change the rule of naturalization through executive orders isn’t in the Constitution anywhere, but the power to establish a uniform rule of naturalization is an enumerated power of Congress!

    1. Once you start down that road, Ken, its hard to stop without junking the entire Code of Federal Regulations and emptying out dozens of office buildings in DC and environs.

      So nobody’s starting down that road.

      1. Ken’s a bomb throwing rabble-rouser, steer the course…

      2. What about the road where there is no more separation of powers?

        Is anybody on the Court worried about that road?

        1. A few. Check the dissents in the first ObamaCare case. I don’t recall if anyone kicked at Roberts’ extreme deference to Congress in that case.

    2. First Rule of Waste Club: You do not fire incompetence, you just move them to an Executive Agency’s auditor list, and set their work product requirement to, “Needs Improvement.”

      Second Rule of Waste Club: Fuck Congress.

    3. No one is being naturalized under this “policy statement.”

      1. I can’t tell if you’re being sarcastic, so I invoke Poe’s Law.

        He’s changing the rules of naturalization without any input from Congress.

        I’m a qualified open borders guy myself.

        I would have supported what Obama did in Libya–if he’d sought authorization from Congress. But he didn’t!

        Point is that regardless of how I feel about immigration, I believe in the separation of powers. I don’t want to live in a world where everything depends on the executive. The framers, in their wisdom, separated the powers on this precise issue–and the Supreme Court is willfully ignoring that.

        1. Naturalization is the process of conferring citizenship. That isn’t included in this.

          1. “Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), sometimes called Deferred Action for Parental Accountability, is a planned American immigration policy which would grant deferred action status to certain undocumented immigrants who have lived in the United States since 2010 and have children who are American citizens or lawful permanent residents. Deferred action is not full legal status, but in this case would come with a three-year, renewable work permit and exemption from deportation.”

            https://en.wikipedia.org/wiki/ Deferred_Action_for_Parents_of_Americans

            There are people out there who will pretend become convinced that certain things are false–simply because they don’t like the implications if it’s true. It happens a lot with global warming, say, or abortion, even. Because some people don’t like the implications of global warming on public policy (socialist) they become convinced that the climate isn’t really changing. Because some people don’t like the idea of the state forcing women to carry babies to term against their will, they become convinced that fetuses aren’t really human.

            I’m not one of those guys.

            Just because I reject socialist and authoritarian solutions doesn’t mean I have to pretend that the climate isn’t changing or that fetuses aren’t human–and just because I want open borders (with certain qualifications) doesn’t mean I have to pretend that DAPA doesn’t have anything to do with naturalization.

      2. Not directly, but would it not affect other requirements (length of legal residency or that sort of thing?)

        If Congress said that in order to be naturalized you must do X, Y, and Z, and the President redefined Y and Z to his liking, it’s the same thing as changing the rule.

  6. “The U.S. Supreme Court will now decide whether or not Obama’s executive action on immigration will be allowed to proceed and whether or not Obama has exceeded his lawful authority under the Constitution”

    Not if they’ve limited themselves to considering the question under Article II, Section 3 and the Administrative Procedure Act.

    I don’t believe this is even a question of overlapping powers, like where the President’s powers as Commander-in-Chief might partially overlap with Congress’ enumerated power to declare war.

    Isn’t Congress’ power to establish a uniform rule of naturalization Congress’ alone? Somebody please correct me if I’m wrong.

    Why should the states be legally obligated to obey the President’s executive orders when he is clearly ignoring the separation of enumerated powers and in violation of Article I, Section 8? That should be the question.

    Why are they considering every constitutional angle on this case except the part of the Constitution that specifically prohibits what the President has done?

    1. You are assuming they want to rock the “executive order” boat..

    2. Isn’t Congress’ power to establish a uniform rule of naturalization Congress’ alone? Somebody please correct me if I’m wrong.

      SCOTUS has signed off on the notion that Congress can delegate its legislative powers to executive agencies.

      Even though one searches in vain for any provision of the Constitution that authorizes such delegation.

      1. Time for a new amendment detailing Congress’s “inalienable powers to make laws”

        1. What’s the difference if the justices on the Supreme Court refuse to call it like it is?

  7. “John Roberts has made his decision; now let him enforce it!” Barack Obama

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