Supreme Court to hear executive amnesty case

The Supreme Court decided today to review a decision adverse to the government in the legal challenge to President Obama’s overhaul of the nation’s immigration rules. At issue is a program that would allow as many as five million illegal immigrants who are the parents of citizens or of lawful permanent residents to apply for a program under which they would receive work permits and avoid the possibility of deportation.

Obama’s power grab was thwarted when a coalition of 26 states filed a lawsuit alleging that Obama unlawfully sidestepped Congress and ignored the requirements of the Administrative Procedures Act for changing rules. A federal judge entered a preliminary injunction shutting down the program while the lawsuit proceeded, and a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit sustained the injunction.

The district court’s injunction was based on a finding that the Obama administration didn’t follow the applicable procedures for changing rules. However, in agreeing to hear the case, the Supreme Court broadened the matter to encompass the more fundamental separation of powers concerns. It asked the parties to address whether the administration’s plan violates the constitutional command that the president “shall take care that the laws be faithfully executed.”


Before reaching the merits, the Court will have to resolve the threshold issue of whether the states have suffered the sort of direct and concrete injury that gives them standing to sue. The New York Times summarizes this dispute nicely:

Judge Jerry E. Smith, writing for the majority in the appeals court, said the states had standing to challenge the program under a 2007 Supreme Court decision that said Massachusetts and other states were entitled to sue the Environmental Protection Agency over its refusal to regulate motor vehicle emissions contributing to climate change.

Judge Smith said Texas would suffer a similarly direct and concrete injury in having to spend millions of dollars to provide driver’s licenses to immigrants as a consequence of the federal program.

Mr. Verrilli [Obama’s Solicitor General] told the justices that Texas’ injury, such as it was, was self-inflicted, a product of its own decision to offer driver’s licenses to people lawfully in the United States at reduced cost.

Texas responded that being required to change its laws is itself the sort of harm that confers standing. “Texas could avoid the driver’s-license-cost injury only by changing its policy and making driver’s licenses less affordable,” the states told the justices. “That is itself an injury, because Texas has a sovereign interest in enforcing its legal code.”

Ann Althouse wonders whether Obama’s executive amnesty will squeak by in the same sort of quirky way Obamacare did:

There seems to be a good chance of a majority vote composed of completely inconsistent positions — the 4 liberals saying there is standing and upholding what Obama did and at least one more vote — maybe 4 more votes — saying there is no standing and not reaching the merits.

The nuance here is that the broad standing doctrine on which the appeals court relied comes from Massachusetts v. Environmental Protection Agency, where a liberal majority found standing for a state to challenge the EPA’s view (in the days of President George W. Bush) that the Clean Air Act doesn’t refer to greenhouse gases. The four conservative Justices, in a dissent by the Chief Justice, disagreed.

Althouse is speculating that some or all of these Justices will continue to take a narrow view of standing and vote with the government on the threshold issue in the executive amnesty case, while four other Justices, the liberals, vote with the government on the merits. In this scenario, Obama wins.

However, Althouse seems to find it at least as likely that the same five Justices who found standing in Massachusetts v. EPA will find it here, so that the merits will be reached, and then Justice Kennedy will vote with the four conservatives who reject standing to find that Obama abused his power. In this scenario, Obama loses.

It’s too early for me to speculate on the outcome. I’ll simply suggest that Althouse hasn’t exhausted the possible combinations that could determine the outcome in this complex matter.

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