OTHERWISE: The Supreme Court vs. the President

Sunday, February 7, 2016

The Supreme Court vs. the President - The New York Times

I think Linda Greenhouse is right to be alarmed. Justice Scalia sees state sovereignty in a pre~Civil War way. And federal authority as derivative, not primary. One consequence of viewing federal authority over the states as weak is that the President - as executive of a weak center - can be easily trimmed. Since his power is derivative and he is directed to "take care that the laws be faithfully executed" he is subject to Congressional command and his own discretionary choices narrow. By such logic the majority of the Supreme Court could strike the President's orders to forego the deportations that the immigration statutes authorize. ~gwc

The Supreme Court vs. the President - The New York Times
by Linda Greenhouse

Hard-wired into the Supreme Court’s DNA is the notion that the court doesn’t reach out to decide a constitutional issue if it can resolve a case by interpreting a statute. “The court will not anticipate a question of constitutional law in advance of the necessity of deciding it,” is how Justice Louis D. Brandeis expressed this principle of judicial restraint 80 years ago in a concurring opinion to which the court often makes reference.
So the court’s action two weeks ago in accepting the Obama administration’s appeal in a major immigration case was startling. The surprise was not that the court agreed to hear the case, United States v. Texas, an appeal from a ruling that the president lacked authority under the immigration laws to defer deporting undocumented immigrants whose children are American citizens or lawful permanent residents. It was rather the blockbuster constitutional question that the justices added to the case, a question the court had not been asked, and one that neither of the lower federal courts had even addressed when they ruled on purely statutory grounds against the administration.

This is what the court said in its Jan. 19 order: “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, §3.’ “

Wow. The “guidance” is the memo that established the deferred-action program, issued in November 2014 by Jeh Johnson, the secretary of Homeland Security. The Take Care Clause provides that the president “shall take care that the laws be faithfully executed.” It is a constitutional provision that the Supreme Court has hardly ever addressed directly. Justice Antonin Scalia invoked it years ago, in a1992 decision holding that environmental organizations lacked standing to challenge the adequacy of the Reagan administration’s enforcement of the Endangered Species Act.
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