The justices of the United States Supreme Court are supposed to be an earnest bunch, polite but firm in their treatment of the lawyers who come before the court to argue for their clients. But, at least for the four putative liberals on the Court, it must have been awfully tempting to look down at the plaintiff’s table and, hearing counsel arguing against the president’s legal right to issue executive orders on immigration.
The case argued on Monday, United States v. Texas, is a direct confrontation between the states and the president’s conception of executive power in the area of immigration law. In brief, Texas claims that the president’s 2014 decision to use an executive order to defer action on undocumented immigrants will cost the state of Texas because of a whole host of new obligations-from driver’s licenses to the price of public education. (The president’s actions allowed about four million undocumented immigrants a chance to breathe a little easier.) The president’s position is that Texas doesn’t have the right to bring this action at all. The energy under the case, of course, is the constant and undying idea that this particular president doesn’t have the right to act like a president in ways that his political opponents find unseemly. (The gracious souls of the U.S. House Of Representatives got 18 minutes to argue against the administration before the Court.) Between this, and the Zubik case that was argued last month, we may be seeing the last cases brought under the unique legal theory that, in 2009, Barack Obama did not acquire the full powers of the presidency the way his more conventional-and whiter-predecessors did.