Supreme Court Tie on Immigration is a Big Wake-Up Call

June 24th, 2016

Yesterday’s 4-4 tie in the Supreme Court effectively ends President Obama’s attempt to thwart Congress and write immigration law himself. That’s good news for those who care about the Constitution and bad news for anyone who relied on immigration rules unilaterally written by the White House.

Obama’s plan sought to protect about four million people from deportation and effectively gave them work authorization by executive order. Texas and 25 other states sued to stop enforcement of the program ultimately landing the case in the U. S. Supreme Court.

While this result may appear on its face “yuge” (to quote one presidential candidate), it actually would have been a much bigger deal if it had gone the other way.  Imagine if the Supreme Court decided that the President of the United States has the power to unilaterally write immigration law.  Clearly, that wouldn’t have been the end of the story.  Immigration is so fundamental to any nation that owning absolute authority over that issue would suggest unfettered power by the executive branch over practically everything else.

And somewhere King George III would smile over us all while George Washington rolled over in his grave.

The result in the immigration case is nevertheless still big but not simply because it puts an end to an unconstitutional action by President Obama.  Note that this was a 4-4 decision.  Clearly, had Antonin Scalia lived the decision would have been the same.  By contrast, if Obama’s choice for the Court to replace Scalia, Merrick Garland, been confirmed and seated most likely it would have gone the other way. Had that happened Congress effectively would be unnecessary.

Analysts are taking note of the tie given the fact that historically in most cases where the president engages in such a blatant overreach of power the executive action has almost always been slapped down by a 9-0 decision by the Court.  This time around, however, the result is clearly very political. Obviously, four of the justices don’t care much for the idea of a separation of powers if it gets in the way of a policy they personally like.

So if you didn’t believe that the upcoming presidential election is critical to the future of the Supreme Court (and thus the future of the country), believe it now.

Hillary Clinton appointees to the Supreme Court would definitely rubberstamp liberal policies brought before the Court no matter how much they appear contrary to even the basic constitutional structure of our government.  And what about Donald Trump’s nominees?  That’s not quite as clear.  While he’s provided a list of potential nominees that look promising, there is no guarantee that the ultimate appointee wouldn’t end up being a very liberal justice.  That’s not so much because it would be Trump making the selection as the historical fact that Republican presidents have a knack for appointing people who end up becoming darlings of the left.

Go figure.

So while odds are better that Trump appointees would be better in protecting the Constitution, there are no guarantees. At least, however, there would be hope (that would be real hope—not the kind we’ve experienced the past seven and a half years).

Speaker Paul Ryan declared yesterday’s decision “[a] win for the Constitution, this is a win for Congress.  Presidents don’t write laws.  Congress writes laws.”

It’s also a big wake-up call as to what’s at stake this November.




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