In the middle of this crazy 2016 primary season, we are about to see whether or not the President's executive order to keep millions from deportation will survive a Supreme Court challenge.
The big argument of the day today is U.S. v. Texas, which brings the question of the President's executive order (DAPA) before the court.
President Obama and Congress have not been able to put together a comprehensive new immigration policy, and so the president has opted to make unusual uses of claimed executive authority. His government’s November 2014 orders would put off, for three years and perhaps longer, the compelled deportation of upwards of four million undocumented immigrants, some of whom came to the country illegally and others who had permission to enter but overstayed and lost that status. Most of them are parents of children who have a legal right to remain. The parents would not gain U.S. citizenship, but would be allowed to remain in the country without legal status and could get a job and access to public benefits, such as driver’s licenses.
The legal fight was brought on by states where Republicans dominate the governments, and where the idea of suing the national government over policy disputes has grown more and more popular. United States v. Texas is as much a part of those efforts as have been the repeated courthouse challenges to Obamacare (the Affordable Care Act), with states playing major roles in those cases, too.
One of the curious things about the immigration case is that, to avoid its own form of gridlock (a four-to-four tie among the eight Justices), the Court might have to form a majority that actually blunts the use of state-initiated lawsuits borne of policy disputes.
That is the so-called Article III question: in legal terms, do the state governments have “standing” to sue the federal government to block its actions with which they disagree legally and politically?
The case has made it to the Supreme Court largely because conservatives cherry-picked their courts and appellate courts. But if the Supreme Court deadlocks on the issue itself 4-4, it means President Obama's order cannot stand, and the lower courts would then go on to a trial.
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It is not difficult to imagine that, on that part of the dispute, the Court would find itself dividing along customary philosophical lines, with the result that it could split four to four. Nothing would be decided finally by such a split, so the Texas case would then go on to a trial, with the issue not likely to return to the Court until after President Obama has left office next January following the inauguration of a new president.
But then, there's this:
If the Court did find itself evenly divided on that issue, it could choose to end the case by ruling against the states’ right to sue.
A lot is at stake here. I'll update you after they release the transcript.