Why the Supreme Court may invalidate Obama's amnesty

Mickey Kaus makes an interesting argument that, contrary to the conventional wisdom, the Supreme Court may act on the lawsuit John Boehner is planning to file, and reverse President Obama’s planned executive action on amnesty:

With Obama’s executive amnesty imminent, anonymous White House aides are cockily dismissing John Boehner’s threatened lawsuit against it as a stunt. Even among opponents of executive amnesty — and I’m with them — there’s a tendency to pooh pooh the suit. It’s a loser, it will take forever to decide, it’s an attempt to ‘redirect Republican rage’ away from budgetary remedies like denying funding, etc.

Not so fast. I’m all for giving defunding a try — also holding up appointments — but don’t sell the lawsuit short. I’ll even go so far as to lay down an Yglesias style marker: If Obama’s executive action is as broad as described, the Supreme Court will strike it down.

Kaus readily admits that he hasn’t researched the legal technicalities. He dismisses these as useful for writing an opinion, but not necessarily the real reason behind many important Supreme Court decisions.

As state court judge Richard Neely argued in his revealing book, How Courts Govern America, there’s often a show rationale for a decision (embodied in the court’s opinion) and the real rationale. The real rationale isn’t necessarily bogus or partisan or otherwise “result oriented.” It’s just unstated. (snip) The U.S. Supreme Court, in particular, is likely to feel a duty to intervene to preserve balance in the Constitutional system. And when conscientious judges see a need to intervene for some such intuitive, system-preserving reason, it seems like they’find a way to do it, even if it requires bending the technicalities and the show rationale to accomplish that purpose. (The show rationale — the opinion — in Bush v. Gore was unconvincing to the point of incoherence, after all.)

It’s just such a system-balancing rationale that presents itself in this case. The Court — or at least the five most conservative justices — might well reason:

My God, if Obama can do this then every President from now on will be taking, or threatening to take, expansive unilateral actions in disregard of Congress, importing entire un-legislated statutory schemes under the guise of ‘prosecutorial discretion’– acting on domestic policy, basically, the way Presidents traditionally act on foreign policy. We need to rein him in.

This addresses the main worry that many serious thinkers, Charles Krauthammer prominently among them, are voicing.  This is a very slippery slope, maintaining that presidents can nullify law at their whim, merely because they are impatient with Congress’s resistance to their desire.  Imagine, for instance, a GOP president directing the IRS to not collect capital gains taxes, because the economy urgently needs more investment.  That would be an outrage, however desirable it might be from the standpoint of economic growth.  I can guarantee you that none of the Democrats approving of Obama’s move would acquiesce.

Mickey Kaus makes an interesting argument that, contrary to the conventional wisdom, the Supreme Court may act on the lawsuit John Boehner is planning to file, and reverse President Obama’s planned executive action on amnesty:

With Obama’s executive amnesty imminent, anonymous White House aides are cockily dismissing John Boehner’s threatened lawsuit against it as a stunt. Even among opponents of executive amnesty — and I’m with them — there’s a tendency to pooh pooh the suit. It’s a loser, it will take forever to decide, it’s an attempt to ‘redirect Republican rage’ away from budgetary remedies like denying funding, etc.

Not so fast. I’m all for giving defunding a try — also holding up appointments — but don’t sell the lawsuit short. I’ll even go so far as to lay down an Yglesias style marker: If Obama’s executive action is as broad as described, the Supreme Court will strike it down.

Kaus readily admits that he hasn’t researched the legal technicalities. He dismisses these as useful for writing an opinion, but not necessarily the real reason behind many important Supreme Court decisions.

As state court judge Richard Neely argued in his revealing book, How Courts Govern America, there’s often a show rationale for a decision (embodied in the court’s opinion) and the real rationale. The real rationale isn’t necessarily bogus or partisan or otherwise “result oriented.” It’s just unstated. (snip) The U.S. Supreme Court, in particular, is likely to feel a duty to intervene to preserve balance in the Constitutional system. And when conscientious judges see a need to intervene for some such intuitive, system-preserving reason, it seems like they’find a way to do it, even if it requires bending the technicalities and the show rationale to accomplish that purpose. (The show rationale — the opinion — in Bush v. Gore was unconvincing to the point of incoherence, after all.)

It’s just such a system-balancing rationale that presents itself in this case. The Court — or at least the five most conservative justices — might well reason:

My God, if Obama can do this then every President from now on will be taking, or threatening to take, expansive unilateral actions in disregard of Congress, importing entire un-legislated statutory schemes under the guise of ‘prosecutorial discretion’– acting on domestic policy, basically, the way Presidents traditionally act on foreign policy. We need to rein him in.

This addresses the main worry that many serious thinkers, Charles Krauthammer prominently among them, are voicing.  This is a very slippery slope, maintaining that presidents can nullify law at their whim, merely because they are impatient with Congress’s resistance to their desire.  Imagine, for instance, a GOP president directing the IRS to not collect capital gains taxes, because the economy urgently needs more investment.  That would be an outrage, however desirable it might be from the standpoint of economic growth.  I can guarantee you that none of the Democrats approving of Obama’s move would acquiesce.