The Supreme Court Is All Tied Up


Protesters attend the Fight for Families Rally in front of the Supreme Court of the United States on April 18, 2016, in Washington, D.C. (photo: Kris Connor/Getty Images)
Protesters attend the Fight for Families Rally in front of the Supreme Court of the United States on April 18, 2016, in Washington, D.C. (photo: Kris Connor/Getty Images)

 

Dahlia Lithwick | Slate | Reader Supported News | April 19, 2016

ast week, Sen. Orrin Hatch penned an op-ed suggesting that Democrats were trying to “deceive voters” with disingenuous claims “that the Supreme Court cannot function properly with fewer than nine justices on the bench.” After calling Democrats liars in various colorful ways, he concluded that “[t]he Senate’s determination to wait until after the election to consider a nominee will in no way impede the business of the judicial branch.”

Maybe.

Or maybe the judicial branch is about to get karate chopped in the face by the ugliest political fight of the year. Arguments on Monday in United States v. Texas, the partisan challenge to Obama’s executive actions that would have allowed more than 4 million undocumented immigrants to remain and work in the United States, certainly suggest a 4-4 tie is not just in the cards but also highly likely. Such a ruling would choke both the executive branch and the court, without affording much clarity or direction about the real scope of executive powers. Have fun with all that, Sen. Hatch.

The challenge in this case effectively asks whether President Obama’s 2014 tweaks to Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expansion of the Deferred Action for Childhood Arrivals program (DACA) exceed his authority. Obama issued these actions in response to congressional gridlock on immigration reform. The idea was that since Congress will not fund the deportation of the 11 million deportable immigrants, the administration would reserve deportation for dangerous offenders and allow others to temporarily remain, and to legally work.

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