NY Times’ Legal Reporter: Obama Will Win DAPA Case if Politics Put Aside

Posted on: February 5th, 2016
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Linda Greenhouse wrote a great op-ed piece in this morning’s New York Times explaining why the Supreme Court case should have no problems reversing the 5th Circuit and allowing the President’s Deferred Action for Parents (DAPA) program to proceed. Greenhouse is the well-known Supreme Court reporter for the Times and is currently the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School.

Greenhouse first addresses the surprising request by the Supreme Court to be briefed by both parties on the Constitution’s Take Care provision and whether it is an issue in this case. The Supreme Court rarely addresses a constitutional question when it can resolve an issue by interpreting a statute, according to Greenhouse. And the major case decided on this issue was from 30 years ago where Justice Scalia ruled in favor of protecting President Reagan. Now the conservatives are considering reversing course.

While the Take Care clause issue is one that pro-immigration groups would like considered in order to head opponents off at the pass who might argue this in future lawsuits, Greenhouse worries that it signals the conservatives on the court are buying in to the right wing talking points about the “lawless” President Obama. Which is nothing new, of course, and Greenhouse quotes from Justice Scalia when the similar DACA program was announced a few years back.

Greenhouse is right, of course, when she states

This is a case that should have been tossed out of Federal District Court in the first instance. Instead, its stakes are now heightened enormously. If the justices approach their task as judges and not as politicians, the administration will easily prevail. It is the Roberts court that now needs to take care.

Fortunately, the recent track record of the court is that while Justices Scalia, Thomas and Alito will almost always change their positions to suit their partisan leanings, the other Justices, including conservatives Kennedy and Roberts, are more likely to keep an open mind and try and make the correct judicial ruling rather than political one. And that’s why immigration rulings from the court have generally favored the President’s exercise of his authority.