In an exclusive interview with Spero News, constitutional law expert and attorney Todd F. Gaziano reviewed a number of issues now being examined by the Supreme Court that have a bearing on the separation of powers guaranteed under the Constitution. Gaziano, the executive director of the Washington DC office of the Pacific Legal Foundation, said that President Barack Obama may have violated the law and constitutional principles such as the separation of powers by insisting on several executive actions to effectively circumvent Congress. Among these are his immigration policies, some of which effectively ignore already established law.
The Supreme Court, which is effectively split in half between liberals and conservatives, is currently considering United States v. Texas, in which the Obama administration is seeking to defend the constitutionality of the Deferred Action for Parents of Americans program (DAPA). The program seeks to grant deferred action to deport illegal immigrants whose children are lawful permanent residents or American citizens. The plaintiffs include: Texas; Alabama; Arizona; Arkansas; Florida; Georgia; Idaho; Indiana; Kansas; Louisiana; Montana; Nebraska; Nevada; North Dakota; Ohio; Oklahoma; South Carolina; South Dakota; Tennessee; Utah; West Virginia; Wisconsin; Michigan; Mississippi; Maine; North Carolina; and Idaho. The Obama administration is asking for the lifting of a lower court injunction, while also asking the Court to issue a ruling to allow the executive action regarding DAPA to move forward in all of the states except for Texas.
Gaziano told Spero News that the plaintiffs in the case argue that Obama has not only violated the Administrative Procedure Act (“APA”), but also that “he did not have the substantive power. Both of those issues are before the Supreme Court, but the narrower way for the Supreme Court is to pass on the constitutional issue and to just rule, as the lower court did, that he violated the Administrative Procedure Act.”
If there is a 4-4 split, said Gaziano, the ruling of U.S. District Court for the Southern District of Texas would be affirmed and thus that Obama had violated the law.
Regarding an initial hearing at the Court last week, Gaziano saw no evidence that that Chief Justice John Roberts – a supposed swing vote – was moved by the administration’s argument. The administration has asked the lower court’s injunction should only apply to Texas, appealing it in February 2015 to the 5th U.S. Circuit Court of Appeals in New Orleans, and proposed that that that Court could issue a partial stay that would allow every state except for Texas to start implementing DAPA.
“Reasonable people can differ on what the right immigration statute should be,” said Gaziano while clarifying that the Pacific Legal Foundation takes no position on immigration. However, Gaziano added, “What the president’s actions have done is united many of us, regardless of our view on immigration, against abuse of separation of powers, and abuse of the checks and balances in our system.
‘Whatever your position is, everyone ought to agree that the president’s picking unilateral action to change the law, which is what he said he was doing when he first issued his order that would have allowed people to get some sort of pass for deportation, but that they would get work permits, that they would get in Texas as you know driver’s licenses, we should all oppose the president’s unilateral action just because he gets impatient with Congress.”
Among the issues being considered are statements President Obama made last year in support of his executive action. In February 2015, President Obama told MSNBC’s José Díaz-Balart that there will be “consequences” for immigration officials who do not follow his directives concerning DAPA:
MR. DIAZ-BALART: But what are the consequences? Because how do you ensure that ICE agents or Border Patrol won’t be deporting people like this? I mean, what are the consequences?
THE PRESIDENT: José, look, the bottom line is, is that if somebody is working for ICE and there is a policy and they don’t follow the policy, there are going to be consequences to it. So I can’t speak to a specific problem. What I can talk about is what’s true in the government, generally.