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Obama’s Means May Meet Their End

“The end justifies the means” is not an argument that parties usually want to make in front of the United States Supreme Court.

Not that it never works. The court has sometimes seemed to choose the result it wants and then reached for rationales to support that outcome, as we have seen in cases ranging from Bush v. Gore to National Federation of Independent Business v. Sebelius, the case in which Chief Justice John Roberts found that the Affordable Care Act’s mandatory fee for failure to purchase insurance was, in fact, a tax.

By and large, however, if you want to win at the Supreme Court, you try to fit your arguments to the ideological leanings of either the conservative or the liberal justices, and then try to add an attractive enough bit of intellectual bait to get Justice Anthony Kennedy, the swing vote, to bite.

But in trying to defend President Obama’s much-publicized but never-implemented policy accommodating millions of people who have immigrated illegally, the administration has been basically forced into arguing that the need for a policy overhaul outweighs the president’s apparent lack of authority to provide it.

The Supreme Court will decide whether Obama actually has the power to implement his program, called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. It is expected to hear the case, United States v. Texas, sometime in April, with a ruling before the court adjourns in June. Government lawyers decided to waive their right to file a reply brief when the Court was considering whether to take the case, presumably with the goal of preserving the rapidly diminishing possibility of a final decision while Obama remains in office.

Somewhere between 4 million and 5 million people living in the country without legal permission would theoretically be spared deportation under the president’s policy. The executive branch has argued that this is no more than a managerial decision about how to expend government resources. But most of these beneficiaries would also be granted the right to work legally in this country, a privilege that Congress has not chosen to extend by statute. On this point, the administration seems to have no legal leg on which to stand, other than to argue that bringing these workers out of the shadows is the right thing to do.

On that point, I agree. So do a lot of other Americans. But Congress writes the laws that govern who can reside in this country, and under what circumstances. Neither I nor the president has the legal power to rewrite these laws.

Two lower courts have already concluded this is probably the case, which is why a temporary injunction has prevented the administration from executing its policy. The case that will now go before the Supreme Court was spearheaded by Texas Attorney General Ken Paxton, a Republican, but is composed of a coalition of 26 states. While the states have acknowledged that the executive branch holds wide authority over matters relating to immigration, they argued that extending “lawful presence,” including a variety of benefits, goes too far.

Obama’s lawyers have argued that the states lack the standing to challenge federal immigration policies. Simply disagreeing with the policy, they insist, is not enough. In fact, the administration would argue that nobody has the standing to challenge Obama’s executive order. The lower courts, however, have not bought into that position. A federal district judge in Texas and the U.S. Court of Appeals for the Fifth Circuit ruled that, at a minimum, Texas stood to suffer injury because of increased administrative costs from implementing DAPA, which would give it sufficient standing to sue. This is another element of the case that the Supreme Court will review.

I agree with the president that our immigration laws should be made more humane, more economically rational and easier to enforce. But just because Congress has not been able to bridge the nation’s divisions on this subject does not mean that the executive can change the laws to suit its whim.

The only real mystery about the outcome of United States v. Texas is whether the Supreme Court will flatly strike down Obama’s order or merely leave the temporary injunction in place while the lower courts conduct a full trial. Either way, it is highly unlikely that this president will be able to impose this policy change before he leaves office, no matter how quickly a decision arrives.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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