When the Supreme Court agreed to hear a case Tuesday concerning the Obama administration’s controversial actions on immigration, the justices asked the parties to look into something the lower courts had not directly addressed: do the President’s executive actions violate the Constitution?
Some legal experts believe that by choosing to add a question on the constitutionality of the executive actions, the court’s eventual opinion could end up redefining the balance of power between Congress and the President generally, possibly restricting the power of presidents who issue wide-ranging executive actions.
For a President that has fought with Congress for years and acted on climate change, gun control and immigration via executive actions, order and regulations, the court could deal the President and future presidents a court precedent that repudiates his legacy.
“The court might say that the President’s authority to interpret what Congress meant and prioritize how to implement congressional directives is more limited than presidents would like,” said Stephen W. Yale-Loehr of Cornell Law School. “Theoretically, this could be one of the most important decisions the court issues this year and could affect how future presidents act in a variety of areas such as guns, and the environment.”
Justices could also, Yale-Loehr noted, reaffirm the administration’s view that the President has wide authority in the area of immigration generally. “Or it could do something in the middle distinguishing his authority in immigration vs. other areas.”
Two federal lower courts blocked Obama’s immigration actions — meant to allow millions of undocumented immigrants to apply for programs that could make them eligible for work authorization and associated benefits — on narrower grounds, and never reached the question of whether the immigration actions violated the “take care” clause of the Constitution that says the President “shall take care that the laws be faithfully executed.”
Immigrant rights groups and other progressives disagree that by adding the question, the Court was doing anything but ensuring that the justices have all the questions in the case squarely before them. They point out that the constitutional question had always been a part of the argument put forward by Texas and the other states.
“As to the constitutional question, it is the one question not ruled on below. But I am pleased the high court took it up — to prevent further political lawsuits to legal executive actions,” said Karen Tumlin of the National Immigration Law Center.
Ian Millhiser, of the Center for American Progress, says he does not expect a sweeping opinion on executive actions.
“The Court is going to say the President has the statutory authority to do this, or he doesn’t,” he said.
“With each executive action the most important question is whether there is a law that authorized the President to take the action he took. Whatever the court says about what the President’s powers are under the immigration laws, that doesn’t tell you anything about what his powers are under some other set of laws,” Millhiser said.
But the potential is there if justices want to make a statement in either direction on executive authority.
Conservatives have fought Obama on executive actions
“The court has the potential to make a broad statement on President Obama’s unprecedented use of prosecutorial discretion in order to re-write laws he does not like,” said Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston. Blackman has filed a brief in support of Texas in the case.
“The broadest way that the Court could rule is that the President failed to take care that the laws are faithfully executed,” Blackman said. “Such a ruling could radically alter the scope of how presidents act without Congress.”
Conservative Carrie Severino, who heads the Judicial Crisis Network, thinks there are justices who want to correct what she says is the President’s “dramatic expansion” of executive power and “restore the constitutional structure of government.”
“This President has been brazen about his willingness to take action that is normally reserved to Congress,” she said. “The fact that the Court added the constitutional question means that some justices recognized that this is not a run of the mill act of prosecutorial discretion, but a novel and controversial power grab,” she said.
When the administration rolled out the programs more than a year ago, officials were clear to point out that they had asked the Office of Legal Counsel at the Justice Department, an office that provides legal advice to the president and executive agencies, for its advice.
In a 33-page memo Principal Deputy Assistant Attorney General Karl R. Thompson, wrote, “the practice of granting deferred action, like the practice of setting enforcement priorities, is an exercise of enforcement discretion rooted in DHS’s authority to enforce the immigration laws and the President’s duty to take care that the laws are faithfully executed.”
