United States v. Texas (Scalia, J., concurring).

August 4th, 2016

To round out this week of announcements, I will be publishing in the Cato Supreme Court Review an imagined opinion of what Justice Scalia would have written in U.S. v. Texas. Keeping with Cato’s tradition, I will not publish a draft before publication date on September 15 (this year Constitution Day falls on a Saturday). I will give you this tease from the introduction:

I write separately to address the “stark” constitutional questions that arise when the “Federal Government . . . does not want to enforce the immigration laws as written.” Arizona, 132 S.Ct. at 2521 (Scalia, J., dissenting). Historically, the Take Care Clause of the Constitution has been cited to bolster the executive’s power to act. However, here the problem is not of a “vigorous” and “energetic Executive,” The Federalist No. 70 (A. Hamilton), but of a passive one. Through DAPA, the Secretary of Homeland Security has suspended a law Congress refuses to change, in violation of the President’s duty of faithful execution.