I will be in the Court tomorrow for oral arguments in U.S. v. Texas. Given that there is at least one opinion to be handed down, and the Court expanded oral arguments for 90 minutes, I may not actually get out of the Court until 11:45 or maybe even 12:00.
At 1:00, I will be participating in a Federalist Society conference call discussing the arguments. The call-in information will be announced tomorrow. At 2:00, I will be a guest on the NPR’s “To the Point.” I am tentatively slated to appear on the PBS News Hour at 6:00, although TV is always fickle, and is subject to change at the last moment.
Here is a roundup of various pre-argument media hits I’ve had in the past few days.
Quoted in Obama amnesty Supreme Court case to test limits of presidential power, The Washington Times (April 17, 2016).
“In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. However, with pens-and-phones replacing checks-and-balances, the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers,” said Josh Blackman, associate professor at the South Texas College of Law, who has followed the case from the start and filed amicus briefs opposing Mr. Obama’s claim of powers.
At issue is the Take Care Clause, which is what scholars call the Constitution’s charge to presidents to “take care that the laws be faithfully executed.” …
Lower courts sided with the states and halted the amnesty on statutory grounds, and never reached the constitutional questions. But the justices, in what Mr. Blackman said was a first, asked both sides to also file briefs on the Take Care Clause.
Quoted in U.S. Supreme Court to hear arguments in immigration case, The Oklahoman (April 17, 2016).
Josh Blackman, a legal expert following the case, said the administration’s best chance of winning may be on the question of the states’ “standing” to sue.
The vacancy created by the death of Justice Antonin Scalia in February could lead to a 4-4 deadlock in the case. If that happens, Blackman said, the federal appeals court order blocking the president’s policy change would remain in effect.
Federalist Society Video explaining U.S. v. Texas (April 17, 2016).
Quoted in “Obama immigration actions face critical day at high court,” The Hill (April 16, 2016).
If the short-handed court splits 4-4, the lower court’s ruling would be left in place, which would virtually guarantee the programs will not go into place before Obama leaves office.
“The 500-pound gorilla is the empty chair of Justice [Antonin] Scalia,” said Josh Blackman, a constitutional law professor at the South Texas College of Law, who helped file a legal brief backing the lawsuit against Obama’s programs.
“It has a significant impact on the outcome of the case. Because we’re down to only eight justices, there is a distinct possibility of a tie.”
While Kennedy ruled favorably for Obama in the Arizona case, they are hopeful he will reprise his role in the 2012 Obamacare challenge, when he scolded the 5-4 majority that upheld the law for “a vast judicial overreaching.”
But they have also been scarred by the experience of seeing the Roberts court deliver victories for the president on his healthcare law and immigration in recent years.
“John Roberts breaks my heart every single June,” said Blackman. “Maybe this will be the way he breaks my heart this year. But I don’t know.”
Quoted in Immigration Case Injects Supreme Court Into Election-Year Storm, Bloomberg Politics (April 16, 2016).
People who received deferred-deportation status under Obama might be especially vulnerable because they would have supplied identifying information to the government. For that reason, advocates on both sides say few people might apply for deferred-deportation status until after the election.
The policy “really hinges on the outcome of the next election,” said Josh Blackman, a professor at the South Texas College of Law, who filed a brief backing Texas.
Quoted in Supreme Court to hear Texas’ challenge to DAPA, The Houston Chronicle (April 17, 2016).
Josh Blackman, a constitutional law professor at South Texas College of Law, argues that forcing a state to change its law so that it doesn’t suffer financial loss, however small and regardless of whether it can later be recouped, is enough to give it a claim at the high court.
“In my opinion, Texas has the silver bullet,” said Blackman, who filed an amicus brief against Obama’s plan on behalf of the Cato Institute, a libertarian think tank in Washington, D.C.
Tuesday morning, I will be in class at 9:30 AM.