Mackowiak: Ruling could have huge ramifications

Matt Mackowiak
Cagle Cartoons newspaper syndicate
Matt Mackoviak

For a former Constitutional Law professor, President Obama seems to understand very little about the Constitution.

The latest example is the Jan. 19 announcement that the U.S. Supreme Court has granted review ("grant certiorari") of the Obama administration's "executive amnesty," which was decreed by President Obama and would allow up to five million illegal immigrants (parents of legal citizens or of lawful permanent residents) to apply for work permits and avoid deportation.

The problem is this executive order is in direct violation of existing federal immigration laws.

Immediately following the executive order, 26 states sued the federal government, with Texas leading the way.

"In deciding to hear this case, the Supreme Court recognizes the importance of the separation of powers," Texas Attorney General Ken Paxton said after word of the review was announced. "As federal courts have already ruled three times, there are limits to the President's authority, and those limits enacted by Congress were exceeded when the President unilaterally sought to grant 'lawful presence' to more than 4 million unauthorized aliens who are in this country unlawfully. The court should affirm what President Obama said himself on more than 20 occasions: that he cannot unilaterally rewrite congressional laws and circumvent the people's representatives."

All three rulings (a federal district court and two three Judge panels at the 5th Circuit Court of Appeals) have gone against the Obama administration. The program was halted while the appeals could be heard.

The Supreme Court is likely to hear arguments in April and rule in late June of this year, perhaps a month before the Republican and Democratic national conventions.

But what is truly interesting is what the Supreme Court did when they agreed to hear the case.

As Paul Mirengoff of Powerline blog wrote, "The district court's injunction was based on a finding that the Obama administration didn't follow the applicable procedures for changing rules. However, in agreeing to hear the case, the Supreme Court broadened the matter to encompass the more fundamental separation of powers concerns."

The Supreme Court wants to review the case from a broader perspective.

Mirengoff continues, "(The Supreme Court) asked the parties to address whether the administration's plan violates the constitutional command that the president 'shall take care that the laws be faithfully executed.'"

This is known as the 'take care' clause.

On its face, it would appear that issuing an executive order that is counter to federal law is not "taking care that the laws be faithfully executed."

Before the merits of the case can be considered, the Supreme Court must first decide if the 26 states that sued the federal government "have standing." They have to prove they have been or would be injured by the government's action.

In a somewhat similar case, Massachusetts v. Environmental Protection Agency, a liberal Supreme Court majority found standing for one state (Massachusetts) to sue the Bush administration EPA over its view that the Clean Air Act did not refer to greenhouse gases.

Might the same majority follow this precedent and find standing again?

Could a broad ruling against the federal government regarding the 'take care' clause set an important precedent that will limit executive power in the future?

Legal expert, constitutional law professor and radio host Hugh Hewitt recently said this case is the biggest "Presidential Power" case since the Steel Seizure case in 1952, and that the ruling could impact other presidential actions, like the Iran Deal.

The ruling in the case will have significant constitutional and political ramifications for decades.

Matt Mackowiak is an Austin- and Washington-based Republican consultant and president of Potomac Strategy Group, LLC. He has been an adviser to two U.S. senators and a governor, and has advised federal and state political campaigns across the country.