- The Washington Times - Tuesday, January 19, 2016

The Supreme Court will rule on whether President Obama has the power to grant a deportation amnesty to millions of illegal immigrants without needing the approval of Congress, the justices announced Tuesday, setting up what could become the biggest showdown over executive powers so far this century.

The justices sped the case in order to hear it this term, and should issue a ruling by the end of June. If they decide in favor of Mr. Obama it would give him six months to try to get his program rolling before he leaves office.

But an adverse ruling would be a devastating blow for a president who has tested the limits of executive power, circumventing Congress on environmental, gun and immigration policies after Capitol Hill wouldn’t go along with his ideas.

“We’ve got a lot of confidence in the legal arguments that we’ll be making before the court,” White House press secretary Josh Earnest said, calling the powers Mr. Obama flexed “clearly consistent with the precedent that was established by other presidents and clearly within the confines of his authority as president of the United States.”

Mr. Obama’s backers had eagerly awaited the court’s decision, and like the White House they expressed confidence they will prevail at the top bench.

“The lives of millions of children and families in America have been disrupted and held in limbo — a situation the president’s action was designed to alleviate — and they deserve the court’s careful and prompt attention,” said Elizabeth Wydra, chief counsel at the Constitutional Accountability Center.

Lower courts have held that Mr. Obama broke procedural and immigration laws in trying to grant work permits, Social Security numbers and three-year stays of deportation to more than 4 million illegal immigrants.

Those courts shied away from reaching the major constitutional questions of presidential power, but the Supreme Court signaled it wants to wade into those issues, asking lawyers to submit briefs on whether Mr. Obama’s amnesty violated the Constitution’s demand that the president “faithfully” execute the laws enacted by Congress.

The case will test the conservative justices on the Supreme Court, who have grappled in the past over the deference they should show to executive power.

A ruling will come just weeks before both Republicans and Democrats nominate their presidential candidates at conventions in July, and whatever the justices decide will become a rallying point for both sides of the debate.

All the GOP presidential candidates have said they would revoke Mr. Obama’s amnesty if elected. The three top Democratic candidates, however, have said Mr. Obama didn’t go far enough, and have vowed to try to add more people to the list of those granted deferred action.

Hispanic leaders said Latino voters will also be watching the outcome of the case, and are prepared to punish those who stand in the way of helping illegal immigrants.

“When people walk into the ballot box, one of the critical issues that they’re going to have on their mind as they vote for the next president of the United States is, who’s going to protect those 4 million people and who’s not,” Rep. Luis V. Gutierrez, Illinois Democrat, told CNN.

Mr. Obama said he felt forced to act after Congress failed to pass an immigration bill he wanted. Rather than issue an executive order, he had his Homeland Security secretary issue memos ordering agents and officers to stop deporting most illegal immigrants, and to expand an existing deferred action program to including millions of illegal immigrants.

Under that program, illegal immigrants are granted a proactive stay of deportation and can get work permits, Social Security numbers and some benefits such as tax credits from the federal government.

Texas led 26 states in challenging the move, saying it would cost them money because they would have to issue driver’s licenses and pay for schooling and health care for those granted the amnesty.

Federal District Judge Andrew S. Hanen, sitting in southern Texas, ruled against Mr. Obama, finding that he broke procedural laws by not putting his policy out for review and comment first. The 5th U.S. Circuit Court of Appeals, sitting in New Orleans, upheld the ruling in a 2-1 decision that said not only did Mr. Obama break procedure, but he also went beyond the powers granted him by Congress in the Immigration and Nationality Act.

The two-judge majority said Mr. Obama has the power to refuse to deport people, but does not have the power to grant a future stay of deportation, along with benefits, to millions of people on a categorical basis.

Those lower courts have maintained an injunction preventing Mr. Obama from carrying out his amnesty.

Immigrant rights groups say the deck was stacked against them both times, accusing Judge Hanen of being “notoriously anti-immigrant,” and then saying the appeals court was too conservative to give the case a fair hearing.

While the issue of deference to the executive branch has long divided conservative judges, Mr. Obama’s own words could harm his case in their eyes.

For the first six years of his presidency he said he didn’t have authority as president to issue such a broad grant of protection, saying he could only act on small groups. But he reversed himself in late 2014, saying he’d rethought the issue and concluded he did in fact have broader powers.

Then in the days immediately after his Nov. 20, 2014, announcement, Mr. Obama said his actions “changed the law” — claiming a power that is reserved for Congress.

Both the district and appeals courts that have ruled against Mr. Obama used his own words against him, saying he appeared to know he was going beyond his powers.

While he’ll have to wait months to learn whether he prevails on immigration, Mr. Obama did win one firm victory from the court Tuesday when the justices declined to hear yet another Obamacare challenge.

Conservative groups had argued the law breached the Constitution because it was written in the Senate, violating the Origination Clause that dictates revenue measures must start in the House. A lower court ruled against the challenge, and the Supreme Court declined, without comment, to hear the case.

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