Executive order

How Obama Doomed DAPA

The president's counsel bumbled badly before the Supreme Court


Oral arguments for the president's counsel trying to convince the Supreme Court that DAPA (Deferred Action Against

Obama Roberts
White House official picture

Parents of Americans) – Obama's executive order offering temporary legal status to four million undocumented – is legal and constitutional did not go well. The justices seemed split along ideological lines, which is bad news for the administration because a 4-4 ruling will leave the lower court's injunction against implementing the order in place.

Liberals will undoubtedly blame conservative partisanship for the outcome. But the fact of the matter is that Solicitor General Verrilli, who argued the case, wrote a poor brief and mounted an even poorer defense. Although the arguments for DAPA are far stronger than for Obamacare, it still seemed like déjà vu with the administration claiming that conferring "lawful" status on the undocumented was not actually making them "legal" – just like when it argued that the fines for violating Obamacare's individual mandate were a tax but also not a tax.

Chief Justice Roberts saved Obamacare by voting with the liberal justices. But his pointed questions to Verrilli suggested that he was not inclined to do so a second time – which leaves Justice Kennedy as the swing vote. But Kennedy too seemed skeptical. Should the decision go against Obama, he'll get his comeuppance given how cynically he's handled the whole issue.

But the price will be paid by hard working undocumented aliens, living in fear of deportation, desperately waiting for relief from government harassment, I note at The Week.

Go here to read the whole thing.

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  1. Obama doomed it by writing an illegal order going beyond his actual authority.

    1. In effect he wrote legislation, so yes.

      1. If four justices see it that way, and four don’t, then we don’t have a real judiciary. They are just an extension of the legislature. Kind of a second bite at the apple for the partisans.

        1. ^. Not news at 11.

        2. This is why whoever controls the SCOTUS nominees is so important. The actual words of the Constitution have ceased to have any meaning, so gaining ideological control of the SCOTUS is tantamount to amending the constitution without actually having to go through the process.

          1. Political hacks nominated and approved by political hacks to be political hacks. Not exactly a great system.

    2. This. It’s doomed because it’s Unconstitutional. Fancy lawyering wouldn’t make it any more Constitutional.

  2. If you let ideology or party trump the actual letter of the law, you have no business on the appellate court, let alone sitting on the Supreme Court.

    Most of these 5-4 splits over the last two decades have been of the “team red vs team blue” variety, rather than over judicial philosophy. They have lifetime appointments. The fact that they are still overwhelmingly political hacks is a serious disappointment. I think there are a couple of idiologs on the right, but I’m not so sure about the left. Every time I think we have a “social justice” left wing of the court, I’m disappointed. A couple in the squishy middle seem to be open to argument, but on policy grounds rather than legal arguments.

    The whole thing invalidates the entire purpose of having a constitutional republic.

    1. You don’t think Kagan or Ginsburg or Souter are ideologically driven? The wise Latina opined the government could take your raisin crop and hold it against your wishes and that wasn’t a “taking”…

      On the other side of the isle, I don’t know if it is so much “ideology” as deference to government power that leads to such disappointing results

  3. Oral arguments for the president’s counsel trying to convince the Supreme Court that DAPA (Deferred Action Against Parents of Americans) ? Obama’s executive order offering temporary legal status to four million undocumented ? is legal and constitutional did not go well.

    Maybe he should have tried arguing that up is down. That at least makes sense in the context of a spherical planet. Arguing that DAPA isn’t legislation is far tougher.

  4. driver’s licenses for DAPA recipients would actually save the government money


    the criteria the licenses will have to meet to be federally recognized for identification purposes.

    Serious question: Does getting one of these licenses require proof of insurance?

    1. Not in Texas.

    2. No, but maybe it could get the illegals onto the voter rolls. Which is likely the whole point.

    3. It is the vehicle that requires the insurance. At least in every place I’ve lived.

    4. In NC you have to provide proof of insurance. Yes, the vehicle is covered, but only for specific persons.

    5. Not in any state I believe, as the DL doubles as an ‘official’ state identification card. You don’t even have to own a motor vehicle, let alone have one insured, to get a DL.

  5. Can’t believe they didn’t call Shikha in as co-counsel.

    1. “Illegal aliens should be made legal by executive fiat! Because FEELZ!!!”

  6. Every argument this administration has made before the SC has been of this caliber. ‘It makes it easier for us to do what we want’, ‘because I said so’, ‘FYTW’.

    Doesn’t he hold a record for 9-0 rulings against him? Exactly what I would expect from a narcissistic personality disorder; arrogance, cynicism, and plain old stupidity. Constitutional scholar, my ass. The man is an embarrassment.

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  8. “Should the decision go against Obama, he’ll get his comeuppance given how cynically he’s handled the whole issue.”

    Do you seriously think he cares about that? His term is almost over, and he allows his party to once again claim that the big bad GOP hates Hispanics. That is all that matters to him.

  9. Team Red at Reason. And you can count on it, Shikha will always demonstrate it.

    Yes, the person who tried to implement policy that she wants is the person who will be at fault is it doesn’t come into being. Sadly for her that person was Obama. It just couldn’t be the fault of the right wing, right Shikha?

    No bigger shill here for the GOP than Shikha.

    1. The GOP wrote the executive order? Or did they force him to by not doing what he wanted?

      Whatever the many faults of the GOP, it’s hard to see how an executive order written by a Democratic President is on them.

      1. You miss my point. Obama wants that policy. So does Shikha. And it his Obama who initiated it. The GOP does not want it, and all the right wing judges don’t want it as well.

        So Shikha is lamenting that it might not go forward. And who does she blame? Obama, who happens to agree with Shikha. But hey, it’s Obama. Hilarious.

        1. Well, it pretty much is Obama. If he hadn’t over-reached and tried to give benefits rather than sticking with something that could be colored as prosecutorial discretion, he’d almost certainly have been fine. His desire to do too much is (probably) going to be what hosed him. That, and being in the executive rather than legislative branch.

          1. She has no problem with what the EO says. Her complaint is how it was defended, that mistakes were made in the defense, not the letters of the EO. Her quote.

            “But the fact of the matter is that Solicitor General Verrilli, who argued the case, wrote a poor brief and mounted an even poorer defense.”

            1. I think the point is that they have shitty arguments for shitty policy, and they would like good arguments for good policy. They’re also pointing out that simply isn’t going to happen with Obama, and probably not ever for that matter.

              You want unlimited free immigration, do something about all the shitty area’s of policy that make that a non-starter. Since those reforms will never happen it’s ludicrous to ask for unlimited immigration. Is that unfortunate? Yeah. It is. Is it also unfortunate the fully open borders people can’t seem to admit that the necessary reforms are outside the spectrum of what the general population can stomach? Yeah, it is.

              You can’t have a ton of free shit being given away on someone elses dime period, but it’s even worse when you do so for non-citizens as it’s essentially a nut check to every citizen taxpayer that’s forced to play by the rules (Minimum wages, wage garnishment, Social Security taxes, Medicare taxes, tax penalties for no insurance, the list goes on for infinity).

              It’s the worst, and least responsible, thing to do with public dollars. This is right up there with foreign nationals paying less in international student rates than Joe American one state over.

        2. Your point is meaningless. Also, you are the one missing the point in a very big way.

          1. I’m wrong that Obama initiated that policy? I’m wrong that Shikha wants it in place and agrees with him on the policy? I’m wrong that it’s the GOP and conservative judges who will do their best to scuttle it? And I’m wrong that Shikha is showing her Team Red colors when she hilariously blames Obama and gives the GOP a pass?

            No. I’m right.

            1. Obama and his team couldn’t have done worse with this pseudolegislation if they had purposely set out to do so. To say it’s been badly handled is a gross understatement. Of course he deserves some of the blame.

              1. So Shikha will have to wait for the GOP to pass a bill that grants deferred action status to certain illegal immigrants who have lived in the United States since 2010 and have children who are American citizens or lawful permanent residents?

                Yeah. Sure. But OK. Let her wait.

            2. The policy was beyond his legal authority to implement and his people did a half-assed job trying to justify why it was within the executive’s authority.

              1. Maybe that should have been Shikha’s stance. But she wants the policy. Note she didn’t complain about executive overreach. She actually is complaining about executive under reach through poor defense.

                1. Do you think anyone here mistakes Shika for a libertarian? Rather, a monomaniac given a keyboard.

                2. Except *she* doesn’t consider it outside his authority. I don’t understand how you can miss that.

                  She thinks it *is* within his authority and he’s going to get slapped down because his people couldn’t explain clearly or coherently where he got that authority from.

                  1. Yikes. That was my point. She loves what he did. It’s something the GOP is fighting him on, and will never do themselves. Yet for her, it’s all his fault. And he is the one standing up for what she wants.

            3. Why wouldn’t the GOP get a pass? The GOP is simply *challenging* the president’s authority – that’s kinda what they’re supposed to do when they think one of the other branches is usurping *their* authority.

              If the president has that authority, they’ll lose. But if the president’s administration – the people *he* picked to handle this – can’t be arsed to exert some effort in showing why the president is allowed to do what he did, then, yeah, that’s Obama’s fault. He’s the head of the executive, he’s responsible for what the executive branch does, how they’re trained, etc. When they half-arse their job, that’s a direct reflection on his ability to manage that organization.

              Fuck man – do you *work*? Because that’s management 101 right there.

              1. Ok, let me spell this out for you. I criticized Shikha. Not the efficacy of the EO. Here we go

                1. Shikha has no problem with what the President did, or she would have said so.

                2. Her problem is that now the policy SHE wants is in danger.

                3. Why is it in danger? Because the GOP challenged it on how the President did it, something she seems to think is AOK. And the proof will be how the vote falls on party lines in SC.

                4. And she criticizes the President, not the GOP.

                Here is who is guilty of over reach. Shikha. And here is who is guilty of being obtuse. You.

    2. WTF was that? That was some genuine frontier gibberish there.

    3. “Liberals will undoubtedly blame conservative partisanship for the outcome.”

      ” . . . It just couldn’t be the fault of the right wing, right Shikha?”

      Oh and looky here, she knew what you were going to do before you did it.

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