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During an interview on immigration, the President tried to draw a comparison between Judge Hanen’s ruling and the various challenges to Obamacare, which he described as (drumroll) “unprecedented.”

THE PRESIDENT:  Well, José, we’ve got one judge who made this decision.  We appeal it to a higher court.  We believe that the law is clearly on our side.  This is true in everything that we do.

Look at the Affordable Care Act.  We’ve signed up 11 million people to get coverage through the Affordable Care Act.  Over 2.5 million of them are Latino.  (Applause.)  Because of what we’ve done, we’ve seen the percentage of uninsured Latinos drop by almost 7 percent.  It’s unprecedented.  So we know it can work.

Now, that hasn’t stopped the Republican Party from suing us constantly, to try to find a judge who may think that what we’re doing is in appropriate, despite the fact that it passed through Congress.  We’ve got a Supreme Court that is still ruling on these cases.  But that hasn’t stopped us from moving forward.

Indeed, the administration hasn’t stopped, failing to prepare any backup plan if the Court invalidates the IRS rule in King v. Burwell. Oh, and while the ACA passed Congress, DAPA did not.

During a wide-ranging interview in Miami on Wednesday, the President commented on DAPA, DACA, and Judge Hanen’s order.

First, in response to a question about DAPA, the President alluded to forum shopping, by explaining “Republican governors . . . found a district court judge.”

Now, unfortunately, a number of Republican governors chose to sue.  They found a district court judge who has enjoined — meaning stopped — us going forward with this program.  But that’s just the first part of the process.  This is just one federal judge.  We have appealed it very aggressively.  We’re going to be as aggressive as we can because not only do we know that the law is on our side, but history is also on our side.’

But has this appeal been aggressive? Despite their empty threat they DOJ will appeal to the 5th Circuit if Judge Hanen didn’t rule by Wednesday, as of today, no papers have been filed in New Orleans. Is this aggressive?

In response to a question about how long the appeal will take, the President explained it will take “a couple of months.”

MR. DIAZ-BALART:  How long will it take?  Because a lot of people are asking.  They said, we were 24 hours away from registering for the expanded DACA and just months from DAPA.  This happens 12 hours before.  What’s going to happen now? How long is it going to take?  And, again, a lot of the questions are, was the President caught by surprise?  And why is it taking so long?  This is what we’re getting, Mr. President.

THE PRESIDENT:  What I’m saying is, is that of course we weren’t surprised.  I’ve got a bunch of lawyers, we saw the judge who was rendering the opinion.  The fact that we weren’t surprised doesn’t mean we can stop the judge from rendering an opinion.  It means that we then go forward in the appeal process. That’s how the legal system works.

And we have asked –- first and foremost, we have asked for a stay.  What a stay means, by the way, for the non-lawyers, is simply that whatever the judge thinks, it shouldn’t stop us from going ahead and implementing.  The first step is to go before that same judge and say, judge, what you said is wrong, rethink it.  He may not agree with that.

The next step is to go to a higher court, the Fifth Circuit. That will take a couple of months for us to file that and argue that before the Fifth Circuit.  We expect to win in the Fifth Circuit, and if we don’t, then we’ll take it up from there.

So at each stage, we are confident that we’ve got the better argument.  As I said before, what I’ve done is no different than what previous Presidents have done.  In the meantime, what I can do is make sure –-

He later repeated, again, that the process would take “months.”

So we’re going to be in a position I think of going through the legal process over the next several months.

Based on this comment, it doesn’t look like DOJ will file for an emergency stay with the 5th Circuit. A process that takes “a couple of months” will likely be an expedited appeal. But the panel opinion could take 6 months from start to finish. Then, en banc if it goes against the Administration. Then a year for certiorari. As I noted in National Review, the courts can effectively run out the clock on the Obama Administration.

One of the President’s most striking remarks concern the efforts of the House of Representatives to use the power of the purse to stop his executive action on immigration. While I am entirely ambivalent about the politicking around the funding of DHS and government shutdowns, the President explained that he would veto any effort by Congress to cabin his executive powers through the appropriations clause.

So in the short term, if Mr. McConnell, the leader of the Senate, and the Speaker of the House, John Boehner, want to have a vote on whether what I’m doing is legal or not, they can have that vote.  I will veto that vote, because I’m absolutely confident that what we’re doing is the right thing to do.  (Applause.)  And in the meantime, we’re going to continue to pursue all legal avenues to make sure that we have a country in which we are respecting not only the law, because we’re a nation of laws, but we’re also respecting the fact that we’re a nation of immigrants.

In Part II of my series, I spin a counterfactual where President Truman vetoed the “Steel Mill Restoration Act of 1952,” which defunded the President’s efforts to seize any steel mills. I use this as a scary example of how a President could use the veto power to fight back against Congress attempting to reclaim its legislative authority. Yet, this actually happened. In the past, the President threatened to veto a bill that would have grandfathered plans cancelled under Obamacare–then accomplished through executive action the exact goal. We are living in a surreal time, where the President describes such behavior as fitting a “nation of laws.”

The host asked the President in several different manners why he didn’t go further with DAPA. The President replied, as he did before DACA, and before DAPA, that he was already stretching his powers to their furthest extent. (Apparently, after each new program, the powers expanded).

The bottom line is, José, that I’m using all of the legal power vested in me in order to solve this problem.  And one of the things about living in a democracy is that we have separation of powers — we have Congress, we have the judicial branch — and right now, we’ve got some disagreements with some members of Congress and some members of the judiciary in terms of what should be done.

The President considers the current constitutional crisis a mere “disagreement” between Congress and the judiciary.

Once again, he says he expanded his powers “as far as we can” (He said that many times before).

What we’ve done is we’ve expanded my authorities under executive action and prosecutorial discretion as far as we can legally under the existing statute, the existing law.  And so now the question is, how can we get a law passed.

He adds that what makes him confident is “prosecutorial discretion.”

THE PRESIDENT:  Here’s the thing.  I was always very clear about this, even when I made the first announcement about the executive actions.  The reason I’m confident about our legal position in what we did with DACA, which was already in place since 2012, what we’re now proposing in terms of expanding DACA, and also for the parents of those who qualified for DACA — the reason I’m confident is that we could take those steps under my powers of prosecutorial discretion. 

If, in fact, we were completely just rewriting the immigration laws, then actually the other side would have a case, because we can’t violate statutes.  We can’t violate laws that are already in place.  What we can do is make choices to implement those laws.  That’s what we’ve done with DACA and that’s what we’ve proposed with the expansion of DACA and DAPA.

In order for us to do most of the work that Boris refers to in terms of expanding opportunities, for example, to say to any young person who has got an advanced degree in math and science and engineering, which we know we’re going to need, even as we try to get more and more young Americans to go into those fields –- in order for us to do that, we’re going to need a congressional law to be passed.  I don’t have all the authorities that are necessary in order to get some of those things done.

In a fascinating colloquy, the host explains why George H.W. Bush’s 1990 Family Fairness program differed from DAPA. Putting aside the fact that only 50,000 people applied (not the 1.5 million estimated), the key difference is that it served as a temporary bridge during the 9 months between when the Senate and House passed versions of the bill.

MR. DIAZ-BALART:  The numbers are unprecedented.

THE PRESIDENT:  Well, the numbers are unprecedented only relatively speaking.  I mean, if you look at what George H.W. Bush did, he, proportionally to what was then the immigrant population, was very aggressive in expanding.  The difference is, is that Democrats didn’t challenge what he did for largely political reasons.

MR. DIAZ-BALART:  And there was a bill already underway.

Focus very carefully on the President’s response. He quickly acknowledges that there was a bill pending– a fact his OLC neglected to discuss.

THE PRESIDENT:  Well, there was a bill underway…

The rest of the sentence seems to be a riff on his theme–when Congress doesn’t solve a problem, then I will.

… but in some ways, you could make an argument that since a bill had passed that didn’t solve that problem, Congress had been very direct in saying we don’t want to solve that problem.

His next sentence is confusing. Is “He” referring to George H.W. Bush? That’s what I thought till we got to the last part about DHS which didn’t exist in 1990. Is he speaking about his Secretary?

And he went ahead and did it anyway, because it’s in his authority to implement, using prosecutorial discretion, the limited resources of Department of Homeland Security.

It doesn’t really make sense. But I think there is a semblance of an idea there.

Today’s episode of Jeopardy had a category about the Supreme Court. I was only able to get a picture of the final three clues. One of the earlier ones involved Justice O’Connor asking what precedent Planned Parenthood v. Casey upheld. The question was “What is Roe v. Wade?” Of course, Casey did no such thing. I’m glad the fact checkers are on it. Alas, for the question of what day the Supreme Court’s term begins, one person said May 1, and another said October 1. Sigh. I would’ve cleaned up this category.

In his response to Bruce Allen Murphy’s book about Justice Scalia, Steven Calabresi (with his co-author Justin Braga) offers some inside scoops (which I hadn’t seen) about the nominations of Justices O’Connor, Kennedy, and Souter, and the non-appointments of Starr, Posner, and Wilkinson. The details are, well, salacious.

As a member of the Reagan Administration for two years and as a close friend of leading Reagan Administration and George H. W. Bush Administration legal officials, I know a lot about how Justices O’Connor, Kennedy, and Souter got to be appointed to the U.S. Supreme Court.

First, Kenn Starr picked SOC. Calabresi calls Starr’s conservatism “squishy.”

Given the tiny number of women who attended law school in the 1950’s, it is very unlikely that any such conservative woman existed who had attended the nearly all male law schools of the 1950’s. Justice O’Connor was hand-picked by former Judge Ken Starr who served as Attorney General William French Smith’s Councilor and Chief of Staff in the early 1980’s. Starr was at the time a very moderate Republican with squishy views that were indistinguishable from those Justice O’Connor later displayed on the Supreme Court.

Calabresi blames Starr for this nomination.

In hand-picking Justice O’Connor for appointment to the U.S. Supreme Court, Ken Starr picked someone very much like himself: a mediocre, squishy, centrist with slight conservative leanings. Justice Scalia did not drive Justice O’Connor to the left. She was already there when President Reagan appointed her. The person to blame for the fiasco of the O’Connor appointment is not Justice Scalia but Ken Starr.

Calabresi also thinks Starr would have been a terrible nominee:

I think Starr would have joined O’Connor and Kennedy in refusing to overrule Roe v. Wade, and he would have been a constant thorn in William Rehnquist’s and Antonin Scalia’s side as he was when he was on the D.C. Circuit. He craved the approval of the Georgetown dinner party circle and of the elite law schools. He was also prone to make mistakes and furiously stubborn about not backing down from them in a way that has always reminded me of Justice Harry Blackmun who devoted his life to the defense of his mistake in Roe v. Wade. It was a serious error of judgment ever to have considered Ken Starr for appointment to the Supreme Court. His disastrous handling of his appointment as an independent council to investigate Bill Clinton proved to the nation all of his many flaws in judgment.

Second, we learn that Bill Bennett was key in stoning Doug Ginsburg’s nomination (come one, that pun was better than “going up in smoke.”)

After Judge Bork’s defeat, the Justice Department, led by conservative Attorney General Edwin Meese III, offered up a libertarian, former Harvard law professor Douglas Ginsburg as the second nominee. Ginsburg’s nomination went down in flames after it was discovered that he had attended a party at Harvard Law School in which students and faculty were openly smoking marijuana to which he did not object. Education Secretary Bill Bennett and his key aide William Kristol idiotically led a crusade to get Ginsburg to withdraw his nomination because he was soft on marijuana. That campaign succeeded paving the way for Justice Anthony M. Kennedy’s appointment. Ironically, Bennett and Kristol would have more likely agreed with Ginsburg than they have with Kennedy.

Third, the blame for Anthony Kennedy goes to “liberal Republican” Howard Baker and the “squishy” A.B. Culvahouse (who 20 years later helped vet Sarah Palin as VP):

The nomination of Anthony M. Kennedy after the Bork and Ginsburg fiascos fell to liberal Republican Howard Baker, who was the White House Chief of Staff trying to stave off Ronald Reagan’s threatened impeachment over Iran-Contra, and to his squishy White House Council, A. B. Culvahouse, because conservative Attorney General Edwin Meese had lost his control over the Supreme Court nomination process after the Bork and Ginsburg fiascos. General Meese’s candidate for the third nomination was J. Clifford Wallace, a mediocre candidate but a very devout Mormon who was an ardent conservative. The White House rejected Wallace out of hand preferring either Judge Bork’s conservative friend from his days at Yale, Ralph K. Winter, or Judge Anthony M. Kennedy. Winter’s candidacy was tubed because of the implacable opposition to him from Senator Joseph Biden, the Chairman of the Judiciary Committee, who quite wrongly thought Winter was just another Bork. Conservatives advising A.B. Culvahouse then rallied around Judge Kennedy who was seen as being more conservative than Judge Patrick Higginbotham who was another possible nominee. Kennedy was known to the White House to have had the strong support of Harvard Law Professor Laurence Tribe, a leading liberal, which made him confirmable in the heated politics following the Bork and Ginsburg fiascos.

And, for good measure, Calabresi has this to say about Posner:

Up until now I have purported to take Posner’s argument with Scalia on its own terms, but I do not feel I can in all honesty leave matters there. The relationship between Posner and Scalia is affectionate on Scalia’s side but filled with envy, pettiness, and anger on Posner’s side, at least in my opinion. Posner is the author of more than forty books, countless law review articles, and countless judicial opinions. I think he feels that he was far more successful as a law professor and a founder of law and economics than Scalia was when he taught at the University of Chicago School of Law. I think Posner blames Scalia for steeling his seat on the Supreme Court, and he quite personally and pettily resents and is envious about Scalia’s very visible presence on the High Court as one of its leading members. When Judge Robert H. Bork was nominated to the Supreme Court in 1987, Judge Posner joined Senator Ted Kennedy in trying to squash Bork’s nomination by writing an article in the New Republic entitled “What am I? A Potted Plant?” The point of the article was to argue for more judicial law-making than Scalia, Bork, or Ed Meese thought proper. Posner’s attack on Heller is thus just the latest and pettiest manifestation of his envy, spite, and anger at losing out for the best legal job in the country to Justice Scalia.

Calabresi explains that NO ONE wanted to appoint Posner to the Court:

The reality is that in all the extensive work I have done both in government and out of government for President Ronald Reagan, President George H.W. Bush, and President George W. Bush I have never, ever once heard ANYONE say that they thought we should consider Richard Posner for appointment to the U.S. Supreme Court. When the Meese Justice Department compiled detailed files on its fifteen most promising candidates for appointment to the Supreme Court, Richard Posner’s name was not on the list. When George H.W. Bush and George W. Bush kicked around names of possible Supreme Court nominees, Richard Posner’s name was again never on the list. When Posner’s name did come up, which was rarely, it was so that we could laugh about his immoral and politically fatal proposal to reform adoption law by legalizing the selling of babies. Posner was not respected by any of the last three Republican Administrations. He was the butt of a joke. If Scalia had not been appointed to the Supreme Court in 1986, the seat would have gone instead to Robert Bork, or Doug Ginsburg, or Ralph Winter, or Anthony Kennedy, or Patrick Higginbotham, or J. Clifford Wallace, or Larry Silberman, or Jim Buckley, or Stephen Williams, but certainly not to Richard Posner. It was not Justice Scalia who kept Richard Posner off the Supreme Court. Justice Scalia has had nothing but nice things to say about Posner over the last 28 years. The thing that kept Posner off every single Supreme Court list I have ever seen is his baby selling proposal, his weird personality, and his supreme penchant for judicial lawmaking in the guise of law and economics rather than originalism. Posner has no-one to blame but himself for the fact he was not appointed to the Supreme Court.

And Judge Wilkinson:

Judge J. Harvie Wilkinson is yet another inferior federal court judge who is a Supreme Court wannabe and who is envious of Justice Scalia and angry to have been passed over, at least in my opinion. … Unlike Judge Posner, who has never ever been considered for appointment to the Supreme Court, Judge Wilkinson was seriously considered by the Administration of George W. Bush for appointment to the High Court. He was interviewed by the President and was passed over in favor of brighter, younger, and more originalist judges like John Roberts and Sam Alito. Once again, Justice Scalia, on whom Judge Wilkinson vents his wrath, has never said a negative word to me about Judge Wilkinson. Judge Wilkinson has only himself to blameforthefacthewasnotappointedtotheSupremeCourt. HiscampaignagainstJustice Scalia is nothing more than sour grapes and is unfair to Scalia who is not responsible for the fact that Judge Wilkinson talked himself out of a job when he was interviewed by President George W. Bush.

Wow.

The very-cool FiveThirtyEight will be using FantasySCOTUS predictions for pending cases. The first feature by Oliver Roeder looks at EEOC v. Abercrombie and Fitch.

Here I’ll turn to two sources: the {Marshall}+ algorithm — a computer program designed specifically to predict court cases — and the wisdom of the crowd at FantasySCOTUS — fantasy baseball’s even nerdier little brother. This is how likely those predictors view a Supreme Court reversal vote from each justice — a reversal would be a win for the EEOC and Elauf.

The predictions are all over the place, and most are made with little confidence — the likelihood of many justices voting to reverse the 10th Circuit decision hovers near the middle.

The computer algorithm foresees a 7-2 reversal, with Justices Antonin Scalia and Clarence Thomas dissenting. The crowd predicts the opposite — a 9-0 affirm as of Tuesday morning, but with a few justices more or less on the fence. And not everyone in the crowd agrees. “As it stands now, some of our best players are across the map on this case,” Josh Blackman, FantasySCOTUS’s creator, told me.

The crowd predictions may well improve. Some predictors will pore over the oral argument transcript looking for clues in the justices’ questions. But there’s only one way to find out what’ll happen for sure — wait. The court will likely issue its decision in this case in June.