Supreme Court to Decide DAPA Case This Term

And I have thoughts on the subject:

As for how the court will decide, it’s hard to say. The argument that Obama’s executive order is unconstitutional is almost transparently illogical: Congress left immigration enforcement to the discretion of the executive branch by giving it inadequate resources to enforce the policy set by Congress, forcing it to exercise its discretion. The president doesn’t violate the US constitution by exercising that discretion just because he exercised it differently than various members of Congress would have preferred or would have themselves legislated, if they were so inclined.

The fact that the argument that the executive action is unpersuasive, however, doesn’t necessarily mean that opponents of the president’s actions can’t find five votes at the US supreme court. For example, the argument that Section 4 of the Voting Rights Act violates the US constitution was actively embarrassing, but that didn’t stop the US supreme court from joining the Republican Party’s ongoing campaign of voter suppression.

But however the court ultimately rules, both parties face a situation in which their policy and political interests clash. An anti-immigration decision issued by a Republican-dominated US supreme court and supported by Republican officials and candidates in the heat of a presidential campaign would be a political godsend for a Democratic candidate running against a Republican candidate (who will either be Trump or someone forced by Trump to run far to the right on immigration), as it would likely drive even more Latino voters to the welcoming arms of the Democratic party.