An interesting piece on the legal issues The Supreme Court will hear, and likely rule on, in United States v Texas (The challenge which has stopped the [mal]Administration’s Executive Action on Immigration dead in its tracks). For those of you who have not had the pleasure of meeting or reading Gabe Malore before, I encourage you to look him up.
By Gabriel Malore, The Federalist
Twenty-six states have sued the Obama administration for making regulations that directly contradict law and inflict taxpayers with millions of dollars in costs for illegal immigrants.
At the most basic level, this case is about stopping yet another President Obama end-run around Congress. In accordance with its constitutional authority, Congress has established an elaborate immigration scheme governing which aliens may enter the United States, how long they may stay, and which aliens must be removed. Obama and the Democrats do not like Congress’ immigration scheme, but they lack the votes to change it.
Obama’s solution to his immigration proposals’ lack of popularity was to simply ignore Congress. On November 20, 2014, at Obama’s direction, Department of Homeland Security (DHS) Secretary Jeh Johnson issued a memo purporting to lay out a new form of immigration relief called Deferred Action For Parents of Americans, also known by its acronym, “DAPA.”
There are three issues the case hinges upon:
Legalizing and Subsidizing Anchor Babies
Congress went to great lengths to prevent so called Anchor Babies (children born in the United States to parents who are neither citizens nor legal residents) from being an automatic exemption from the Immigration Laws they wrote. Given this care and intent, does the President have the authority to nullify by regulation what Congress clearly intended?
Procedure and Substance
The President and his Secretary of Homeland Security (Jeh Johnson) purported to add a new Federal Regulation without first running that regulation through the Congressionally mandated (via the Administrative Procedures Act) notice-and-comment rule-making for this new substantive rule.
A Constitutional Question Over the President’s Job Description
The States riased this issue in their cases, but neither the District Court nor the Fifth Circuit Court of Appeals took up the argument in their actions on the case. The Supreme Court ordered both the States and the Administration to argue the point before them as part of the case.
Based on the inclusion of the last question I think we may be looking at a rather less split court than we have seen in recent decisions.