Tuesday, January 19, 2016

Value of SCOTUS on Executive Actions

The Supreme Court announced today that it would rule on the dispute between the Obama administration and 26 states over the White House's decision to grant unilaterally work permits to millions of illegal immigrants:
The Supreme Court agreed Tuesday to entertain four legal questions raised by Obama’s immigration action.
Three of the questions were laid out by the Justice Department in the petition asking the justices to take up the case: whether states create legal standing to challenge the deferred actions grants by providing benefits to such immigrants, whether the actions Obama ordered in 2014 were arbitrary and capricious under federal law, and whether the administration was obliged to go through a formal notice-and-comment period before proceeding with its plan.
The fourth question, added by the justices in their Tuesday order, is whether Obama’s actions violated the Constitutional provision requiring him to “take care that the Laws be faithfully executed”—in essence, whether existing law bars the president from making the kinds of enforcement changes he sought to make.
The 26 states backing the lawsuit the court will take up argue that Obama did breach his duty to "take care" that the laws are enforced and that his actions amounted to a power grab that violated "the Constitution’s separation of powers more generally."
The Supreme Court might have allowed this case to wend its way through the appeals process; Daniel Horowitz has some thoughts about why defenders of checks and balances should be wary about this SCOTUS intervention.

It's understandable, though, why the Supremes have decided to weigh in on this.  Beyond the partisan squabbles, we have seen the Obama administration advance a theory of the executive in which the president gains the ability to act when Congress doesn't.  This obviously turns the principle of checks and balances on its head, and Candidate Obama ran proclaiming his belief in limiting executive power.  However, as often happens, the enticements of power won out over the commitments of the campaign.  The president has already rewritten health-care and immigration law, and, in his final year, the White House has pledged the "audacious" use of executive power.

This shift toward the audacious executive could have dire implications for constitutional traditions regarding the balance of power in the federal government.  In the wake of the Obama administration, leading presidential candidates, including Hillary Clinton, have pledged to build on this precedent of executive supremacy.

A new paradigm of governance is potentially evolving, and this case could give the Supreme Court a chance to weigh in on this paradigm: will it defend constitutional checks and balances, or will it endorse executive supremacy?

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