Tuesday, January 19, 2016

Be Careful What You Wish For: Supreme Court Immigration Case Could Blow Up GOP Chances in 2016

Either way it decides. Weird, huh?

Obama can win or lose, and the Supreme Court might blow up the 2016 election.

This is one of those "holy shit!" moments when a savvy commentator sees more than the average pol, or other pundit for that matter. I certainly didn't see this coming.

Twenty-six states have sued the Obama administration for its DAPA executive order, which was meant to protect the undocumented parents of U.S. citizens who mostly were born here after their parents came illegally. In many cases, deporting the older, undocumented family members sends people back home who literally have no home to go back to, often after decades in the U.S.

From Greg Sargent of WaPo's The Plum Line:
There are several ways the Supreme Court could decide this dispute. It could agree with the administration that the states lack standing to sue, thus allowing DAPA to proceed. It could rule on statutory grounds — that is, on the question of whether Obama’s executive action is consistent with the Immigration and Nationality Act. The administration says that in the INA, Congress granted the executive a great deal of discretion to set enforcement priorities, and that DAPA — in temporarily deferring the deportation of millions of parents of children who are U.S. citizens or permanent residents, and allowing them to get work permits — is merely exercising this discretion.
The states have argued, among other things, that this executive action is tantamount to a broad policy change and thus required a “notice and comment” rule-making process. An appeals court agreed that the states have standing to sue and that they are right about the need for “notice and comment.” The Supreme Court could decide whether the appeals court is right based on an evaluation of either of those.
Or, thirdly, the Court could rule on the underlying Constitutional question. That’s because the Court took the unusual step of adding a question for the parties to argue: Whether Obama’s executive action “violates the Take Care Clause of the Constitution.”
I agree with the Obama administration on all grounds. One, the states don't have standing on federal issues (yet I think it's likely that the Court will grant standing based on side effects, like the expense of granting state driver's licenses to undocumented workers allowed to remain in the U.S.); two, the INA statute clearly allows Obama the discretion to prioritize those who, by prosecutorial discretion, should not be subjected to deportation at this time; and three, if a law grants this power to the president -- as INA clearly does -- then Obama is faithfully executing a law and doesn't fall afoul of the "take care" clause of the Constitution.

And yet we've seen this Supreme Court apply some pretty partisan and twisted logic to arrive at decisions in line with their conservative views. Oh well.

But here's the rub:
Obviously Republicans might argue that this is a good debate for them — that swing voters don’t like Obama’s executive actions on behalf of immigrants and that it energizes the GOP base. Even if that is right, however, what will probably matter most for 2016 is how this battle colors the views of the two parties arrived upon by Latino voters. (Indeed, some GOP strategists clearly agree that this is the case, given their efforts to get the GOP to moderate on immigration.) And in that regard, whatever happens at the Court, it’s hard to see this debate playing in the GOP’s favor.
I see the Supremes blowing up GOP chances either way. If the case goes against the GOP, the GOP candidate must shout from the highest rafter that he will "repeal it on day one," making the Dems look good in Latino eyes. If the Dems lose, Latino voters still stand by the Dems who went to bat for them. And both Latinos and white Dems will rally behind the Democratic candidate, realizing how important having a Democrat in the White House is when the next Court vacancy comes up.

So, GOPers who forced this case in an election year, it's time to worry about what you wished for. You may not like the results in the fall.

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