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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