- - Tuesday, April 19, 2016

ANALYSIS/OPINION:

Americans can disagree over whether President Obama has fulfilled his promise of fundamental “hope and change,” but it’s the showdown over immigration policy that may determine whether he leaves as his legacy a fundamentally transformed America. As the U.S. Supreme Court, arbiters of the Constitution, reviews the president’s defense of the nation’s boundaries, it will judge whether he has upheld his sworn duty to ensure the nation’s laws are “faithfully executed.” It doesn’t require a black robe to see he has failed on both accounts.

Minus the late Antonin Scalia, the eight jurists heard arguments Monday from lawyers representing 26 states arguing that Mr. Obama overstepped his authority to order de facto amnesty and immunity from deportation for 5 million persons who arrived illegally and have lived here beyond the law. Texas Solicitor General Scott Keller argued that the sweeping scope of the president’s executive orders place them beyond the limits of the Constitution. Predicting the outcome of Supreme Court cases is a fool’s game, but Justice Anthony Kennedy, often unpredictable but usually a reliable indicator of which way the court leans, showed skepticism of the president’s penchant for setting policy and expecting Congress to rubber stamp it. Said he: “That’s just upside down.”

The border battle lines were drawn in November 2014 when Mr. Obama said he would get around congressional deadlock on immigration reform with executive orders that grant temporary legal status to millions of illegals, including parents of American citizens and those who entered the United States illegally as children. Led by Texas, the several states sued, arguing that complying with the president’s orders would subject them to economic harm. Lower courts agreed and an injunction was issued, blocking implementation of the president’s plan. If the Supreme Court is deadlocked 4 to 4, as many expect, the lower court decision will stand.

The ruling hasn’t diminished the volume of illegals reaching the United States. Border Patrol agents say they have been instructed to release immigrants who claim they arrived prior to 2014, even if, as Brandon Judd, president of the National Border Patrol Council, testified to the House Judiciary Committee earlier this month, they’re soaking wet from stepping out of the Rio Grande. The president has so far been thwarted in his scheme to dispense with borders, and he still can’t determine how the homeland is secured, or isn’t. The flow of children sneaking into the country has risen 1,200 percent since 2011, according to the Congressional Research Service. The numbers have spiked even higher during the first five months of fiscal 2016.

With a ruling expected in June, the case is likely to be the final immigration showdown, in court if not on the border, of the Obama presidency. Its repercussions, however, could send shock waves that would reach the new president next year as he or she struggles to manage the floodgates of humanity trying to breach the border.

The president is not a law unto himself, but a servant tasked by the Constitution to ensure that laws enacted by Congress are carried out. When Mr. Obama announced that he “took an action to change the law” by granting amnesty to millions of illegals, he usurped the authority of lawmakers to decide who may enter the United States, and how. It’s up to the justices to take it back. Their decision could determine whether the nation preserves its identity, or loses it forever.

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