Supreme Court Upholds Major Separation of Powers Case

The Supreme Court Building in Washington, DC  Photo:  Jon Richards
The Supreme Court Building in Washington, DC Photo: Jon Richards
Approaching the end of its 2016 term, the Supreme Court today effectively upheld a lower court’s decision that President Obama violated the separation of powers between the executive and legislative branches of the federal government by issuing executive actions that would have allowed around four million illegal immigrants to remain in America for a period of time without fear of being departed. The DAPA program, or Deferred Action for Parents of Americans and Lawful Permanent Residents, was proposed by President Obama after Congress failed to pass comprehensive immigration reform.

While the court’s decision is seen by some as a blow to immigration reform, it might more properly be seen as a win for those who believe the president has usurped power rightly belonging to Congress. That’s what Speaker Paul Ryan said in comments following the decision:

Today, Article I of the Constitution was vindicated. The Supreme Court’s ruling makes the president’s executive action on immigration null and void. The Constitution is clear: The president is not permitted to write laws—only Congress is. This is another major victory in our fight to restore the separation of powers.

Georgia Attorney General Sam Olens echoed the Speaker’s sentiment:

The Supreme Court’s action today leaves in place a decision affirming that President Obama cannot evade the Constitution. Our nation’s laws, the separation of powers between the executive and legislative branches, and the Constitution, must be followed.

The victory could be short-lived, however. The court’s decision was a tie, due to the death of Justice Scalia. That means the issue could be brought before the court again, once the court gains a ninth justice. And that brings up several questions. Will the Senate confirm Merrick Gartland, President Obama’s pick to replace Scalia, before the new president takes office in January, thereby allowing the Obama administration to ask for a rehearing? Or, will President Hillary Clinton, who has said she wants to broaden the DACA and DAPA programs, appeal the issue after getting her choice of judge on the court? Another possibility is that President Trump will announce that he has no intention of asking the court to approve a measure that goes against his anti-illegal immigrant stance?

For that matter, Congress could write its own legislation dealing with the issue of illegal (and legal) immigration. As usual, it’s complicated.

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Dave BearseScottNAtlantaWill DurantgcpJon Richards Recent comment authors
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Andrew C. Pope
Andrew C. Pope

Other SCOTUS rulings today: Upheld U of Texas’ admissions formula in Fisher Held that 4th Amendment does not permit warrantless blood tests for DUI arrests in Birchfield Dollar General: Tribal courts have jurisdiction over tort claims against non-tribal defendants. This was also a 4-4 tie, so the 5th Circuits decision that jurisdiction exists is allowed to stand. Mathis: something about the Career Criminal Act, I don’t even know. (Side note, with Fisher, Dollar General, and U.S. v. Texas it was apparently 5th Circuit Day at the Court) Still awaiting decisions in: McDonnell v. U.S., Whole Women’s Health v. Hellerstedt ,… Read more »


POTUS already has executive control over immigration enforcement. If he gains DAPA authority coupled with DACA there ain’t much left for congress to do concerning immigration. Congress would still control citizenship but not much else.

Will Durant
Will Durant

“Another possibility is that President Trump will announce that he has no intention of asking the court to approve…”

An example of the gossamer thin line between tragedy and comedy in a single sentence.


This title is highly misleading. There was nothing upheld and no precedent was set. The exact case can come up again through the 9th circuit and could very well have an opposite decision. The court deadlocked at 4-4…so in fact there was NO decision at all thus the 5th circuit decision stands for now, but is by no means final. You really should change the misleading title.

Dave Bearse
Dave Bearse

Isakson’s complaint that Obama is circumventing the Constitution and governing in the wrong way would be more credible if it were not undermined by Isakson as party to GOP Senators’ circumvention of the Constitutional requirement that the Senate advise and consent with respect to Supreme Court nominations.