Discussion for article #242682
I have a feeling the SCOTUS will side with the administration on this one. Or if they don’t, they are going to make it a very narrowly defined decision.
I don’t see SCOTUS deciding to reel in Executive Orders in a big way, not ahead of an election. And politically, giving Obama a win on this actually helps the GOP more. It will give them something else to gnash their teeth about and go into full spittle flicked rage.
Smacking down the guy who isn’t going to be running ever again isn’t nearly as apocalyptic.
It seems an extraordinary notion that the Executive cannot, in its discretion, decide that it would rather devote its limited budget to something other than the deportation of illegal immigrants. Simply makes no sense. This has to be overturned.
1 Like
But of course, let’s go back to the Supreme Court, which has (mostly) been the answer to all the GOP’s problems since 2000.
What a surprise:
“Judge Jerry E. Smith, who was appointed by former President Ronald Reagan, and Judge Jennifer Elrod, who was appointed by former President George W. Bush, voted to deny the request. Judge Carolyn Dineen King, appointed by former President Jimmy Carter, cast the dissenting vote.” http://www.texastribune.org/2015/11/09/fifth-court-strikes-down-immigration-program/
4 Likes
The Fifth Circuit only covers three states, Texas, Louisiana, and Mississippi. As a general matter, a Circuit Court’s decision is not applicable outside that Circuit. In this case, the Federal District Judge in Texas issued a nationwide injunction, attempting to apply his decision way beyond the Fifth Circuit. One of the key issues on appeal was whether he could do so. The three judge panel was split on this, with the two Republican judges saying Yes, the one dissenting Democrat judge saying No. I point this out because it leads to another potential Administration strategy; it could simply say that it does not accept the Fifth Circuit’s decision to attempt to apply its decision outside its boundaries. This would be very aggressive, but clearly within the Administration’s authority. It might even apply for an Order to that effect in the Ninth Circuit (California and the West), carefully selecting its judge and thereby dramatically limiting the impact of the Fifth Circuit. As I said, this would be a very aggressive action, but it would be an appropriate jurisprudential FU to the Fifth Circuit’s Republican judges and would keep the issue in play through the 2016 elections, forcing the Republican presidential candidate to take a hostile anti-immigrant position.
7 Likes
I am very doubtful that Obama would be willing to go that route.
It took him a very long time to get to the level of issuing an EO. I just don’t see that kind of a fighting spirit but you never know.
In a 2-1 decision Monday, the 5th U.S. Circuit Court of Appeals…
Yep, as I’d assumed. The one-stop, go to court for all of your wingnut opinions.
1 Like
If this decision stands there will be a huge backlash from the Latino community. Say adios to your elected offices, pendejos.
2 Likes
The “2” in this 2:1 decision are both Republican appointees, the man by Reagan (at a very early 41 in 1987, which is why he’s still sitting as a regular on the 5th CCA and not yet reduced to “Senior” status), and the woman by Dubya. Since “appointed by Dubya’s” a complete explanation, the more interesting focus is on the man, Judge Smith - just your ultimate extremist severely conservative partisan, a judge so right even this 5:4 right wing SCOTUS has overturned some of his decisions. If you want to know the kind of thinking process Jerry Ed’s got, go read some Ilya Somin, who writes regularly for the Volokh Conspiracy legal matters blog, and while you’re reading assuming Somin actually had the authority to back up those opinions, then rejigger at least one Overton window to the right, and there’s Jerry Ed. He’s been a pain in the butt for a long time and this isn’t nearly his most partisan decision - altho I could well be his most assinine.
In other circuits, we’d assume that Obama and Holder would seek an en hanc re-hearing of the appeal before the full panel. Purely on numbers that’s not very promising: the Chief was appointed by Bill Clinton, but 10 of the remaining 14 full regular panel were appointed by Reagan, 6 of those by Dubya, and among those 5 is Leslie Southwick so good luck with that. The panel’s short two for exactly the sort of Republican obstruction you’d guess (only guess is so inadequate to describe what they Senate Republican Caucus has been doing with Obama’s federal court nominatons over the past almost 7 years).
But despite all that, an en banc appeal here might work. Smith is the extremophile’s extremophile, and most of this court LIVES in or near the affected area, so it’s not like they can’t relate to the problem, or the chaotic mess this decision would wreak if enforced.
Moreover, the entire regular panel would know that the strict Federalist view that 4 of the 5 Republican appointees on the SCOTUS adhere to has as one of its key features deference to the executive over Congress.
This decision won’t stand because it can’t work, for anyone, or anyone’s agenda. Not even Trump can praise this given Congress won’t budget for it.
The Republicans want to build walls to keep the Mexicans out and round up 11 million of them or so and just toss them back over the border. Because outreach.
With outreachers like this, the Mexicans don’t need any enemies.