Media Roundup for U.S. v. Texas

April 18th, 2016

Today was a fairly hectic day after oral arguments. I didn’t leave the Court until about 11:50, and didn’t get back to Cato until shortly after noon. I had barely an hour to prepare for the Federalist Society call at 1:00, amidst fielding a few calls from reporters. Here are the published media sources so far:

  • Guest on To The Point–Undocumented Parents and the Supreme Court, National Public Radio to discuss U.S. v. Texas (April 18, 2016).
  • Federalist Society Podcast on U.S. v. Texas (April 18, 2016).

Opponents of the president’s plan similarly read positive predictions from the justices’ questioning but, if anything, it seemed clear that the court was conflicted.

“The court is quite divided,” said Josh Blackman, a constitutional law professor at South Texas College of Law who filed an amicus brief against Obama’s plan on behalf of the Cato Institute, a libertarian think tank in Washington D.C. “I think there’s a distinct possibility that this case goes to a 4-4.”

“Regardless what the court does here, the next election will really decide the fate of this immigration policy,” said Josh Blackman, a law professor at the South Texas College of Law in Houston, who filed a brief in the case supporting the challenge to the immigration actions. “It’s not that the case won’t matter, but the outcome of this policy very much hangs in the election.”

As this year’s topsy-turvy presidential election has proved, predictions are difficult at best. Much depends as well on whether Republicans can maintain control of the House and Senate, and how strong majorities are in each chamber.

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Roberts seemed to ignore the government’s argument that Texas has no standing to sue. Instead, he was more concerned about whether Obama has the right to push a policy that Congress should have a hand in.

“The fault here lies with the president. This case could have been appealed to the Supreme Court in July of 2015,” said Josh Blackman, a constitutional law professor at South Texas College of Law. “He declined to do that, and that ensured that this will become an election issue.”

And that’s what it’s become, just like the question of whether Obama can nominate a justice to replace Scalia. If Hillary Clinton wins, she’ll likely try to uphold the executive action on immigration and continue to fight through the courts.

If a Republican wins, it will be wiped from the books.

The Supreme Court, still hobbled with eight justices, seems poised to slam the brakes on the order by doing nothing at all.