Yesterday, United States Supreme Court heard oral arguments in the contenious case of United States v Texas. This case involves the State of Texas’ challenge to President Obama’s program to allow undocumented parents of US citizen parents to remain in the United States despite their nebulous legal status.
Particularly in an election year, the case has polarized the nation. It has also demonstrated the number of cases which will require the appointment of a successor for Justice Scalia. Almost everyone who heard the case thinks the Court will split 4 to 4 thus upholding the lower court but not ending the controversy. The broader issue, of course, is the ability of the President to act by executive action in the face of Congressional impasse. Ruling by executive order is hardly a new concept and it was perfected as an art form by President Ronald Reagan. There is something unsultry about the process, but the bottom line is that for 98% of the people the separation of powers issue is a secondary argument. When they like the executive order, they generally find ways to minimize the way it was implemented. When they don’t like the result, they generally start pushing the separation of powers issue.
Lyle Denniston at SCOTUS blog has an excellent summary of the issues before the Court.