This spring, in United States v. Texas, the Supreme Court could decide the legality of President Obama’s executive action on immigration that purported to rely on “prosecutorial discretion” to “defer” the deportations of up to five million illegal aliens and grant them work authorization. Law professor Josh Blackman, who joined amicus briefs supporting the 26 states suing the administration, posted an article Sunday noting that: “[i]n 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed.”
Professor Blackman explains that the lower courts ruled that Obama’s executive action failed to comply with the requirements of the Administrative Procedures Act, but did not consider the fundamental issue of presidential power under the Constitution. The government appealed the case to the Supreme Court, asking the court to consider just two questions: standing and compliance with the APA. The Obama Justice Department implored the court not to consider the underlying constitutional question.
The Supreme Court had a different plan. In January, it ordered that “the parties are directed to brief and argue the following question: ‘Whether the guidance [Obama’s executive amnesty] violates the take-care clause of the Constitution.'”
Posted 2/15/16 by Margaret Hull, who comments that the untimely death of Justice Scalia makes it less likely that the court will rule this year on this fundamental constitutional issue.