Texas Sued the United States While Nobody Was Looking
The justices of the United States Supreme Court are supposed to be an earnest bunch, polite but firm in their treatment of the lawyers who come before the court to argue for their clients. But, at least for the four putative liberals on the Court, it must have been awfully tempting to look down at the plaintiff's table and, hearing counsel arguing against the president's legal right to issue executive orders on immigration, ask:
"Look, dude, on the subject of legal rights, isn't your attorney general under indictment at the present time?"
Sometimes, I really hate good manners.
The case argued on Monday, United States v. Texas, is a direct confrontation between the states and the president's conception of executive power in the area of immigration law. In brief, Texas claims that the president's 2014 decision to use an executive order to defer action on undocumented immigrants will cost the state of Texas because of a whole host of new obligations-from driver's licenses to the price of public education. (The president's actions allowed about four million undocumented immigrants a chance to breathe a little easier.) The president's position is that Texas doesn't have the right to bring this action at all. The energy under the case, of course, is the constant and undying idea that this particular president doesn't have the right to act like a president in ways that his political opponents find unseemly. (The gracious souls of the U.S. House Of Representatives got 18 minutes to argue against the administration before the Court.) Between this, and the Zubik case that was argued last month, we may be seeing the last cases brought under the unique legal theory that, in 2009, Barack Obama did not acquire the full powers of the presidency the way his more conventional-and whiter-predecessors did.
"The question is does Texas have the right to bring this case," said CNN Senior Legal Analyst Jeffrey Toobin. "Texas says if you give legal status to these people, then we'll have to give them drivers licenses. The federal government says there's nothing in this law about drivers licenses. This law is directed entirely at the immigrants themselves, it does not impose any obligations on the states. So the states should not have the right to challenge it. That's the standing argument. I think the Obama administration thinks they have a better chance at winning over one of the conservatives on standing than they do on the merits of the case, whether it is lawful."
There might have been an interesting-and significant-question of constitutional law to be argued in this case, assuming that the case had been brought with an ounce of good faith whatsoever. But, in the context of the stated desire of the Republicans in Congress to use all means, fair or foul, to hamstring the presidency of any Democrat elected to the office, and especially this one, then that question gets subsumed in the context of the ongoing political vandalism that passes for political philosophy. The reports from the oral arguments on Monday seem to indicate that the Court is split along the now-customary 4-4 lines, although more than one observer has noted that the standing issue might be a lifeboat in which the Court could escape from a 4-4 ruling on executive powers, which would be a mess. In addition, and even though we know that electoral politics never plays a role in the Court's decisions, it might just rule against Texas on the standing issue because the justices know that whoever gets elected in November can rescind this president's actions the moment he or she is sworn in. Never underestimate the power of the passed buck, especially among those people with lifetime tenure.
