Patterico's Pontifications

4/18/2016

Obama’s Illegal Executive Amnesty Argued Today in Supreme Court

Filed under: General — Patterico @ 7:35 am



Another reminder of how sharply Justice Scalia is missed.

Adam Liptak is doing the Linda Greenhouse thing they do at the New York Times, where they identify a Justice who deeply cares about public opinion (like Anthony Kennedy or, here, John Roberts), and send him a message about how much more statesmanlike it would be to leave the leftist policy in place.

Hey, it worked before.

65 Responses to “Obama’s Illegal Executive Amnesty Argued Today in Supreme Court”

  1. Ding.

    Patterico (86c8ed)

  2. How can you tell the difference between rhetorically trying to influence Chief Justice Roberts and describing for non-experts what one expects based on one’s understanding of Chief Justice Roberts’ demonstrated jurisprudence?

    aphrael (056faa)

  3. The smart move for the Supremes is to consider President Cruz or President Trump with this kind of power.

    That kind of straightforward analysis seems rare, and replaced by social engineering.

    Simon Jester (2708f4)

  4. Liberals are for excessive executive powers when their executive is executing it. But when Bush 43 was Prez, all we heard was talk about separation of powers, the duties of Congress, and trashing the Constitution.
    Same with this left wing nutjob Gregory Diskant who argues that the Constitution doesn’t really mean that the Senate has confirmation authority for a President’s Supreme Court nominee, so Barack can just appoint Garland without confirmation!
    Naturally, Diskant never “discovered” that wacko interpretation of the Constitution when Bush 43 was doing the nominating.
    Funny how that works.

    Cruz Supporter (102c9a)

  5. He has been pulling crud like this for 8 years, yet current, ongoing opinion polls don’t reflect all that much (or certainly enough) disapproval.

    Many Americans must love the crease of his pants. Either that or they’re as nonsensically left-leaning as he is. Probably both.

    (Will a President Cruz receive that much benefit of the doubt? Don’t count on it. The sheeple is mindless because it falls for the notion that liberalism, and its supplicants, is kinder and gentler.)

    Mark (16bc93)

  6. Aphrael: years of reading the NYT and Liptak. It’s things like which experts they consult, how they word their statements, and so forth.

    Patterico (0c81af)

  7. aphrael:

    How can you tell the difference between rhetorically trying to influence Chief Justice Roberts and describing for non-experts what one expects based on one’s understanding of Chief Justice Roberts’ demonstrated jurisprudence?

    Because the author spends the first 9 paragraphs talking about Chief Justice Roberts’ history with ObamaCare and how Roberts needs to be even-handed and incremental, before he even starts to explain what law the Court has before it. If this was about informing readers about this case, the author would have actually told them about the case instead launching into an analysis of the Chief Justice.

    The topic of this article is obviously Roberts so it’s reasonable to believe this is directed at him, especially since this has happened before.

    DRJ (15874d)

  8. The NY Slimes is good at sniffing out who among the Justices suffers from Sally Field Co-Dependency Feelings of Inadequacy and thereby telegraphing a message to that Justice that they should vote “X” in order to win the approval of the Media Elites.
    Ultimately, they’re gunning for Justice Roberts to make a cocktail toast at a Manhattan Christmas Party to sound something like Sally Field’s famous Oscar speech;

    You like me, you reporters at the New York Times really like me.”

    Cruz Supporter (102c9a)

  9. That’s a nice suit Roberts is wearing, but is it supposed to drape like that? Maybe he’s slumping or put on a few pounds and needs to let it out? But the sleeve length is perfect – 3/4 inch of shirtcuff showing. As is his haircut.

    nk (dbc370)

  10. That sort of power in the hands of one man fits the definition of tyranny.

    Colonel Haiku (dab36f)

  11. “Many Americans must love the crease of his pants.”

    Many Americans absolutely adore their subsidy checks and manifest their adoration by approval of the leader of the party dedicated to maintaining and/or increasing current subsidy levels. It’s true from ‘hood right down Wall Street and every single parasite involved is making a very rational decision.

    Rick Ballard (0aa2b3)

  12. Scalia would be asking things like “OK, the President has discretion in how he prosecutes the law. How, given a law that forbids work permits for this group of people, does he discrete work permits?”

    Kevin M (25bbee)

  13. “…and where does he discrete them from?”

    Kevin M (25bbee)

  14. I dont know, it has been reported that it has been Alito and not Scalia that has been the stalwart against judicial immigration overreach. See also http://theweek.com/articles/606195/why-scalias-death-might-have-robbed-progressives-unexpected-immigration-ally

    urbanleftbehind (5eecdb)

  15. From the NYT article:

    Chief Justice Roberts wrote a sharp dissent in Massachusetts v. Environmental Protection Agency, a 5-to-4 decision in 2007 that said Massachusetts had standing to challenge the Bush administration’s decision not to regulate greenhouse-gas emissions. Relaxing standing requirements “because asserted injuries are pressed by a state,” the chief justice wrote, “has no basis in our jurisprudence.”

    Justices Kennedy, Ginsburg, and Breyer were all in the majority in this case, so left unsaid by the NYT writers is that all three of them will obviously favor Texas’s claims of standing, you know, for consistency’s sake. Because it’s not like Ginsburg and Breyer would ever base their judicial reasoning on whichever party’s ox is being gored.

    JVW (9e3c77)

  16. That’s a nice suit Roberts is wearing, but is it supposed to drape like that? Maybe he’s slumping or put on a few pounds and needs to let it out? But the sleeve length is perfect – 3/4 inch of shirtcuff showing.

    I think you may be right, nk. Roberts is standing, so surely he knows that his jacket ought to be buttoned, but by the way it billows in the back it looks to be unbuttoned. Perhaps the cold DC winter has led him to put on an extra layer of body warmth as you suggest. I also think the jacket is a big too long, but it just might be the angle of the photograph. But, as you note, his tailor got the sleeves absolutely perfect. I hope Roberts is recognizing this by either wearing some nice cufflinks or sporting a monogram on his cuffs.

    JVW (9e3c77)

  17. Based on Obamacare and Friedrichs, I expect the worst.

    Patricia (5fc097)

  18. There are two issues:

    1) Does Texas really have standing to sue?

    2) Can the president issue various kinds of papers, and what papers, when he has definitively decided not to deport someone for a given period of time? Also: What is the status of these papers? What are the limitations on the issuance of Social Security cards or the other documents at issue? Is it the authority of the president to issue them limited by law, and if so, is it constitutional to limit the issuance of Social Security cards? When? Where does the federal government get the authority to prohibit an intrastate employer from employing someone? This goes way beyond Wickard. Can it do so, and simultaneously tax it? Some of these things are not being argued.

    And by the way: What authority, if any, does a president have or not have to officially exempt someone from deportation? Can it be limited by Congress? Has it, in fact, been limited by Congress in the way Texas claims? What do the words “lawfully present” mean?

    Sammy Finkelman (366297)

  19. Roberts just wants to live a peaceful life.

    BobStewartatHome (a52abe)

  20. There is no limitation on the number of people a president can issue visitors’ visas to, and little on who can get them, so the question boils down to either did the president stay deportation the wrong way, which is essentially a trivial issue; or is there is a limitation laid down by Congress and allowed by the constitution on the issuance of Social Security cards etc. – and that is what the second issue would be.

    Sammy Finkelman (366297)

  21. good allah, sammy, this is nonenforcemeny as a class,

    narciso (732bc0)

  22. So as per Sammy if you carry that logic as The One already has to it’s end the Executive can violate any statute with impunity. Why bother having a Congress at all? If you say the President in one or a few cases articulate a specific reason why he will not enforce specific deportation orders on specific aliens, it’s still highly suspect but plausibly defensible. To say he can do it on millions….because… on a grand scale willfully violates the governmental branches and their roles as intended. Simply it’s insane. Give The Prom King In Chief a crown and be done with it.

    Bugg (db3a97)

  23. #5

    Will a President Cruz receive that much benefit of the doubt? Don’t count on it. The sheeple is mindless because it falls for the notion that liberalism, and its supplicants, is kinder and gentler.)

    Mark (16bc93) — 4/18/2016 @ 8:10 am

    If Cruz is elected, there will numerous opinion polls coming out in dec 2016 and early jan 2017 showing what a bad job he is doing as president. (from skewed leftist opinion groups)

    Joe - From Texas (debac0)

  24. #22 Joe,

    If Cruz is elected, those December polls will likely ascribe blame to Cruz for any early winter blizzards the country might experience—and maybe even blizzards in Europe, too. But any of the top ISIS leaders who are killed by our military around that time will be credited to Barack! (LOL)

    Hooray for biased media!

    Cruz Supporter (102c9a)

  25. 21. narciso (732bc0) — 4/18/2016 @ 10:21 am

    good allah, sammy, this is nonenforcemeny as a class,

    That’s the question. Can he do that, or must it be a lottery at best, or, at worst, up to corrupt, low level officials to decide who stays and goes? And you can have elements of both possibilities at the same time.

    Now actually I think a president could issue an unlimited number of visitor’s visas without encountering any issue about exceeding any kind of authority or having a dispute with Congress, and I don’t think there’s a limit either on for how long they can be or for how many times in the row they may be issued (but I might be wrong) but they do not come with work authorization, so the question, and in fact this is really the question in this case, is can a president issue work authorizations under the law to anyone he wants to; and secondly, can Congress prohibit employment in the first place, and if so, when and where? I think maybe a state could prohibit employment to aliens who are not “U.S. persons,” but not Congress.

    I think this case, once you get pass standing, hinges upon what is the meaning of “lawfully present” because that seems like what is the limitation on the president, or, more generally, what restrictions has, and can, Congress place upon the issuance and the validity of Social Security cards and similar documents, and if it does and has, can possession of one be made a requirement for legal employment? And if so, does this extend even to the minutest kind of intrastate trade.

    The case can also hinge on another issue: Just when can a president change regulations? President Obama may have changed the regulations about the issuance of certain documents. Maybe indeed he, or the government agency in question, has the authority to do so, but maybe it requires a period of public comment or something else which wasn’t done.

    And another question is, if he didn’t have the authority to issue certain documents, what happens to the documents that he did issue? Are they invalid, even before expiration? If so, how is anyone to tell? Maybe some of them have indications of under what authority they were issued. Do they remain valid until somebody looks at them?

    Sammy Finkelman (366297)

  26. When it suits the Left, judicial restraint. Otherwise, WTF they want.

    Rodney King's Spirit (db6706)

  27. If Cruz is elected, there will numerous opinion polls coming out in dec 2016 and early jan 2017 showing what a bad job he is doing as president. (from skewed leftist opinion groups)

    If Obama can win a Nobel Peace Prize three days into his Presidency then Cruz can be lambasted for doing an awful job 2 days into his.

    Rodney King's Spirit (db6706)

  28. If Cruz is elected, there will numerous opinion polls coming out in dec 2016 and early jan 2017 showing what a bad job he is doing as president. (from skewed leftist opinion groups)

    If Obama can win a Nobel Peace Prize three days into his Presidency then Cruz can be lambasted for doing an awful job 2 days into his.

    What 2 days? I agree with Joe from Texas that these polls will come out in December and early January, well before his term begins.

    Milhouse (87c499)

  29. I wouldn’t mind 0bama winning this one, provided that the states get the right to enforce the law themselves if they like. That’s the bad decision here. Just because Congress has exclusive legislative rights over an area, I don’t see how that means that the president has exclusive enforcement rights. Congress can’t compel state or local authorities to enforce federal laws (which is why “sanctuary cities” are legal, and why states could refuse to enforce prohibition), but where does it say that the president can prevent them from doing so voluntarily?

    I rather like the idea that 0bama and the Supreme Court will end up making President Cruz a White Housewarming gift of the right to not enforce any laws and regulations he chooses. I’ve got a little list…

    Milhouse (87c499)

  30. Milhouse is right. In December and January before Cruz is even sworn in the “news media” will be slipping in phrases like: “the low expectations of the Cruz Presidency”, “Can Cruz replace a man like Obama” or “so far the Cruz Presidency looks to be lethargic at best”. They will be pumping out low expectations, Obama comparisons (but only the positive ones of course) and blistering assault of “when is he going to do this or that?”. Plus every time a black person farts it will be Cruz’s fault. And of course watch and see how often unemployment, street people, hungry kids, sick veterans, and disenfranchised handicapped midgets make the news as well as deteriorating infrastructure, poor schools and overflowing emergency rooms.

    Hoagie ™ (e4fcd6)

  31. “Bill you kiss the blacks and the gays I will kiss the mexicans and the jews and we will win the white house as often as we choose!”

    hillarys song (c70e88)

  32. Ted Cruz would choose SCOTUS nominees who are immune to the enticements of the MSM cool kids issuing invitations to their table at the lunchroom.

    Beldar (fa637a)

  33. who looks better in a dress hillary clinton or ted cruz?

    hillarys song (c70e88)

  34. I gotta go with an orange jumpsuit

    steveg (fed1c9)

  35. Chief non justice Roberts is a traitorous judge.

    mg (31009b)

  36. one interesting deal, judge hanen, was nominated in 1992, but the ‘nonexistent’ biden rule was in effect then,

    narciso (732bc0)

  37. Beldar:

    31.Ted Cruz would choose SCOTUS nominees who are immune to the enticements of the MSM cool kids issuing invitations to their table at the lunchroom.

    He would try to. I don’t know how many there are these days outside of Texas, especially young ones.

    DRJ (15874d)

  38. Down the street at the Treasury Department, Alexander Hamilton has been rescued, and Andrew Jackson has instead been thrown under the bus.

    Beldar (fa637a)

  39. Re: Visitors visas. I think maybe Obama could not have done it that way, because theer’s aprovision in the McCarran Walters Immigration Act, which was passed over President Trumna;s veto in 1952 that says a visitor’s visa cannot be granted to anyone who they suspect wants to immigrate to the United states, even legally, or so its been interpreted. therefore anyone intending to attend college must explain their desire to go back to their home country, and Mitt Romney when he proposed letting them stay, did not understand that, because if anyone admits hat that’s their polan or taht’s their hope,m even if they could only do that legally, the visa is not supposed to be granted.
    Also anyone not a U.S. citizen or permanent resident, who is planning to marry a U.s. citizen, , if they let them know, cannot get avistor;s visa but must get an immigration visa, even if that takes longer. This is so even though, once here, it is easier to convert from one kind of status to another.

    Sammy Finkelman (366297)

  40. Bernie Sanders and Hillary Clinton have said they would choose only Supreme Court nominees who are committed to overturning Citizens Union. (Merrick Garland is not)

    Sammy Finkelman (366297)

  41. Aversion therapy for Republican Supreme Court candidates:

    (candidate enters VR simulator)

    Washington hostess of the liberal variety: Mr. Justice! You and your wife must come to our party–where you can mingle with the cool people and be scolded about your conservative legal philosophy!

    Simulated Candidate’s Wife: Yes, let’s do that.

    Candidate: Sure, why no–

    [VR simulator administers a heavy electric shock, follows by several swift kicks to the shins]

    Tester: *sighs* OK, once more from the top.

    3:-)

    M. Scott Eiland (1edade)

  42. Maybe it’s time the states take every unauthorized new arrival on a tour of Washington DC and deliver them to either the Department of Homeland Security for inprocessing.

    crazy (cde091)

  43. DRJ (#36), re Texas judges: I’m a big fan of Judge Jennifer Elrod, having tried a jury case before her in Harris County before Dubya’s appointment of her to the Fifth Circuit came through. (And from a personal and selfish standpoint, I confess that it would be amazingly cool to know that there’s someone on the Supreme Court who’s read my blog from time to time, back when I wrote regularly.) I can think of several other current or recent Texas Supreme Court justices who are well qualified, and who would also break the current near monopoly of Ivy Leaguers whose experience is limited almost entirely to the federal court system.

    Texas is also way overdue! I’m pretty sure that the only Texan ever to sit on the SCOTUS was Justice Tom C. Clarke, a Truman appointee who served from 1949 to 1967 (when he took senior status). But I frankly doubt — and, in good faith, I can’t argue with a straight face — that President Cruz ought to give much weight to that factor in selecting a successor to Justice Scalia and, in all likelihood, successors to Justices Ginsberg, Kennedy & Breyer.

    Beldar (fa637a)

  44. A President also had the authority to “parole” people into the United States. But congress limited this power in a 1996 bill., and established a quota for that.

    Sammy Finkelman (366297)

  45. Milhouse (87c499) — 4/18/2016 @ 12:44 pm

    Congress can’t compel state or local authorities to enforce federal laws (which is why “sanctuary cities” are legal, and why states could refuse to enforce prohibition), but where does it say that the president can prevent them from doing so voluntarily?

    It’s not their law. What states could do is pass their own law excluding some non-citizens from a state, like they used to do before the Civil War, (and here we will consider anyone granted permanent residence to have been given a form of naturalization) but they’d have to do all the enforcing themselves, and they could only demand that they leave the state, not the country.

    I rather like the idea that 0bama and the Supreme Court will end up making President Cruz a White Housewarming gift of the right to not enforce any laws and regulations he chooses. I’ve got a little list…

    The Wall Street Journal today mentioned the capital gains tax and environmental regulations. (although I’m not clear how capping tax evasion penalties at 15% suspends the capital gains tax. I suppose that’s been written about elsewhere.)

    Of course, they’d only be suspended, and not too many lawyers would advise people that it is safe to ignore them, especially for big corporations.

    By the way, actually this does happen. The IRS makes settlements. And Obama is certainly ignoring most of the consequences of the individual mandate. They are not at all trying to make sure what is being claimed in the way of subsidy is correct. It will be a real mess in 2017 and 2018.

    And many laws passed by Congress have deadlines by which regulations are supposed to be issued, and they are not.

    Sammy Finkelman (366297)

  46. I’m familiar with Judge Elrod and she is good. While we are speculating, I have a feeling President Cruz might appoint Governor Abbott to the DC Circuit Court.

    DRJ (15874d)

  47. In New Jersey, the Democratic State Senate refused to confirm a nominee of Governor Chrios Christie to the New Jersey Supreme Court for six years. (They insisted he re-apoint the sitting justice)

    Governor Chris Christie just caved in, inspired to make a deal maybe because he’s endorsed Donald Trump. He appointed a Democrat whom he and the State Senate agreed upon.

    http://www.wsj.com/articles/chris-christie-nominates-democrat-to-new-jersey-supreme-court-1460423587

    Sammy Finkelman (366297)

  48. And I would bet money that Scott Keller would get a federal district judge appointment.

    DRJ (15874d)

  49. While we are speculating, I have a feeling President Cruz might appoint Governor Abbot to the DC Circuit Court.

    I can be happy with that.

    Bill H (dcdd7b)

  50. Sorry for the balled up quoting. I’m on a brand new tablet, I have to get used to it.

    Bill H (dcdd7b)

  51. R.I.P. Doris Roberts

    Icy (4f33a9)

  52. We tend to forget just how long Trump has been a celebrity, how much in the public eye — and in the cameras’ eye — we was even before he got his own reality TV show. And we tend to underestimate, therefore, just how rich is the wellspring of Trump opposition researchers.

    The good stuff takes money and effort to ferret out — it’s beyond the capacities of the average blogger to find, in most instances, and Google’s just no damned help if it’s not on the ‘net. If, though, you’re a young media science graduate volunteering for Bernie or Hillary or the DNC, you’ve got a campaign credit card, and you’re welcome at every mainstream media video vault in the world, then yes: This stuff is very findable — and usable — indeed.

    But unless you’ve already seen this episode from The Daily Show, I’m pretty sure you haven’t seen the 1994 video clip contained therein (beginning ) at 6:05) of The Donald and Marla, a/k/a Mrs. Trump #2, being interviewed about their then-infant daughter Tiffany — who, as we’ve seen on TV lately, has indeed grown into a charming and lovely young woman, one who actually managed to register to vote for her father.

    They’ve got so much stuff already, they can afford to dribble out tidbits like this one from now until November. For every ugly aspect of his personality we’ve been shown already in this campaign — despite his claims that he can be “the most politically correct president you’ve ever imagined” — we’re going to see hundreds more if he’s the nominee.

    Trump is a bigger iceberg magnet than the Titanic at full steam in the North Atlantic south of Newfoundland. There are so many icebergs, and we’ve only seen the tips of them, but they’re all coming his way.

    Beldar (fa637a)

  53. This is a straightforward question:

    Do we have any Trumpkin commenters at Patterico.com who are female? Or perhaps I should say: Who self-identify here in comments as female? (On the internet, no one knows you’re a marmoset.)

    Beldar (fa637a)

  54. Interesting argument:

    The McGovern experience [referring to the Dem’s 1972 overreaction to 1968’s nomination of Humphrey, despite his failure to run in the primaries] is a reminder that what seems to be the most democratic method isn’t always so. The Roosevelt experience [referring to TR’s unsuccessful effort to use primaries to unseat William Howard Taft, before TR went Bull Moose] is a reminder that parties have an interest in protecting their philosophical principles from whoever decides to show up to a primary election.

    Yet, their push for more primaries won the day. The increased role of the public in the nomination process has largely been celebrated and almost always produces nominees widely accepted by their party’s voters.

    What can still stir a sense of unfairness, especially in close races, are the state-by-state variations in rules, born out of the power held by state legislatures and state parties to implement procedures. But those variations are healthy, because there is no one perfect way to pick a nominee.

    ….

    What we have is a mix of methods, an electoral obstacle course, allowing establishment candidates and insurgent outsiders the opportunity to make their arguments and show their ability to navigate different political terrain. It was good enough for an Obama to beat a Clinton. It was good enough for a Trump to eliminate a Bush. If a candidate can’t survive this gauntlet, it doesn’t mean the game is rigged; it means the candidate lacks the broad support necessary to earn the presidency.

    I agree; I’d also add that this is exactly what we should expect to see in the 50-state federalistic laboratory of democracy.

    And the system isn’t at all static: This cycle will surely prompt much discussion within both major parties about how the next one ought to go, and there will be adjustments big and small, at both national and state party levels, as a consequence. My guess is that the Trumpkins won’t show up in any significant numbers for those discussions, either, though — meaning, again, they’ll be “disenfranchised” and “cheated” next time, too.

    Beldar (fa637a)

  55. i’m a strong black woman and a lifelong republican I support Mr. Trump cause of he is the best choice between him and that Texas senator who’s also running

    i like Mr. Trump cause of he’s a quintessentially American character unlike harvardtrash Ted of whom i am dubious with respect to his sincerity and also he’s very unctuous

    Mr. Trump’s policies will be very good for my community because he’s not owned by the establishment and the people who *are* owned by the establishment will get a much-needed time out to think about who they are and what they belieber

    happyfeet (831175)

  56. feets, are you “Diamond” or are you “Silk”?

    Icy (4f33a9)

  57. i’m a scrumptious lil cupcake!

    happyfeet (831175)

  58. I think Trump’s “They’re cheating me” is a dishonest and disingenuous ploy.
    First, he knows about small print and legal loopholes as much as anybody (at least he should be able to hire them even if he doesn’t know it himself).
    And he has said he is great at making deals and finding the best people to do his bidding.

    He has no excuse after the fact to cause a ruckus other than as a political maneuver, the kind of political maneuver/manipulation his supporters detest, thinking he is giving them “straight talk”.

    MD back in Philly!!! (f9371b)

  59. “New York Values” include rent control. Next to Trump, I can’t decide who in this story I dislike the most. It’s a ridiculous system in New York, but it’s the one Trump thrives in, so I ‘spect he’d do his best as President to turn American into New York City with exactly this sort of nonsense.

    Beldar (fa637a)

  60. The court has become a joke, thanks nonjustice Roberts. You have perverted the court. I hope you meet up with a sturdy oak branch, soon.

    mg (31009b)

  61. yes it’s a disgusting third whirl joke court anymore

    ivy league trash will do that to an institution

    happyfeet (831175)

  62. Our higher education system is a con job on tax payers. I have some dynamite leftover from blowing up rocks in the 60’s. It is time to blow the education system to smithereens.

    mg (31009b)

  63. Beldar–

    Trump lives in rent-controlled apartments. I doubt he owns them, and I doubt he pays much for them.

    Kevin M (25bbee)

  64. Kevin M (25bbee) — 4/19/2016 @ 5:40 pm

    Trump lives in rent-controlled apartments.

    that can’t be right. For one thing, you can only have ne, and it must be yout main home. What do you think he is: Charlie Rangel?

    Sammy Finkelman (a5988d)


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