U.S. Supreme Court oral argument took place today in the high-stakes U.S. v. Texas case. The case is about the scope of the President’s “prosecutorial discretion” power to confer de facto lawful status and sundry government benefits upon roughly one-third of all illegal aliens presently in the country. The U.S. Court of Appeals for the Fifth Circuit ruled last year that the program — officially known as DAPA, and frequently referred to as Obama’s executive amnesty — violated the Administrative Procedure Act, and affirmed the trial court’s preliminary injunction. Upon deciding to hear the case, the U.S. Supreme Court added the intriguing constitutional question of whether the executive amnesty additionally amounts to a violation of Article II’s Take Care Clause — that is, the duty that the President “shall take Care that the Laws be faithfully executed.”
When DAPA was pronounced seventeen months ago, I argued that the program wildly abused any preexisting norms of “prosecutorial discretion,” and specifically urged House Republicans to — at minimum — publicly ponder filing formal articles of impeachment. For law buff readers, I’d highly recommend reading this amicus brief on the Take Care Clause inquiry, filed by my friends Josh Blackman of South Texas College of Law and Ilya Shapiro of the Cato Institute.
The stakes in this case are, frankly, enormous. Barack Obama repeatedly denied he had the authority to do what he did here, pretty much right up until the November 2014 unilateral decree. That it is even a live question as to whether or not the President possesses this power speaks volumes as to just how imperial — and, indeed, lawless — the Executive Branch has become under Obama. The President has historically enjoyed far greater discretion in the realm of foreign affairs — where “secrecy” and “dispatch” are most acutely needed, as Alexander Hamilton argued in Federalist No. 70 — but it is much more intuitive and natural to think of immigration as being more inherently domestic in nature. And the Supreme Court has long recognized congressional plenary power over immigration, consistent with Congress’s Article I § 8 prerogative to “establish an uniform Rule of Naturalization.”
Quite simply put, if the Court upholds DAPA, the Take Care Clause will be rendered a superfluous nullity, and future Presidents will have nearly limitless discretion to stretch and abuse “prosecutorial discretion” to choose which laws to enforce and not enforce according to their idiosyncratic whims. Such unfettered discretion would, for instance, directly abet unprecedented politicization of the IRS. And regarding DAPA, Hillary Clinton and Bernie Sanders are both on record as supporting an increase in the mass amnesty’s breadth. When you have a “pen” and a “phone” — not to mention a politically powerful and eager open-borders lobby — who needs Congress?
Such executive unilateralism is anathema to the post-Enlightenment legal tradition, as The Wall Street Journal rightly noted in its editorial today:
The Anglo-American legal tradition began as the English rebelled in the late 1600s against the Stuart kings who claimed the power to suspend or dispense with laws passed by Parliament. The first two grievances against the Crown in America’s Declaration of Independence concerned such ‘Abuses and Usurpations.’
The Framers wrote Article II’s Take Care clause to prevent the President from claiming the same lawmaking powers. The executive shall—not ‘may’—execute Congress’s laws faithfully, in one of the Constitution’s most specific instructions.
A Facebook friend of mine who clerked on the Court for Justice Anthony Kennedy opines that Texas is the most important separation-of-powers case since the famous Youngstown case, 64 years ago — where the Court rebuffed President Truman’s attempt to unilaterally seize private steel mills in the context of the Korean War effort. A few other cases come to mind, but I am very much inclined to agree.
Conservatives and constitutionalists should be happy today that Scott Keller was the attorney representing the State of Texas and the 25 other States which are co-parties to the suit. I briefly met Keller when he was Sen. Ted Cruz’s Chief Counsel in the Senate, and I was interning for Sen. Mike Lee’s legal staff. Keller is now Texas Solicitor General (Cruz’s old position, from 2003-2008), and as a former Kennedy clerk himself knows how to craft an argument to reach our mercurial swing justice. He is a gifted lawyer, and conservatives should sleep well knowing we had such a skilled advocate defending U.S. sovereignty and the Madisonian separation-of-powers scheme.
Influential libertarian law professor Randy Barnett, who signed on to the Blackman/Shapiro amicus brief and helped moot Keller last week, was in attendance at oral argument this morning and assures that Keller and his co-counsel were terrific:
Conservatives should keep an eye on this case. In a term filled with many blockbuster cases, U.S. v. Texas might just be the most important of them all. Justice Scalia’s death looms large over the proceeding, and a 4-4 split is a distinct possibility. Given the Fifth Circuit’s affirmation of the district court’s preliminary injunction, such a split would not be the end of the world.
Here is the full transcript of the oral argument, which I hope to get to soon.