Recently the Supreme Court rendered its opinion in United States v. Texas, upholding a court order that blocked the Obama administration’s refusal to enforce the immigration laws. Although the deadlocked 4-4 ruling was clearly a victory for the rule of law (a tie goes to the lower court, which upheld the order), this narrow victory for the Constitution’s separation of powers – literally, the closest possible margin – shows how close we are to losing the checks and balances that make our Constitution work.
As we all learned in school, the Constitution divides up the federal government’s authority among Congress, the president and the courts so that no one branch has all the power. Separating the branch that makes laws from the one that executes them also creates checks and balances that keep them from overreaching. For instance, the Constitution says that the president shall “take care that the laws be faithfully executed,” which requires him to follow Congress’ dictates instead of his own ideas. These rules make the most representative branch – the people’s branch – the most powerful. Through election of the Congress, then, the American people can push back against a lawless government.
And this is just what the American people did with President Obama in 2010, first by taking control of the House of Representatives away from the Democrats, and then later by giving Republicans the Senate. Even the Supreme Court joined in the opposition to Obama, often unanimously, rebuking the administration over and over again. But still Obama refused to budge, even after the American people had long made clear that they don’t want a broad amnesty for illegal immigration.
Instead of working with Republicans to pass less radical legislation, President Obama declared war on the Constitution, promising to use executive action to enact several far-left proposals that Congress had already rejected. He issued executive fiats giving illegal immigrants licenses and work permits while also exempting them from the consequences of their illegal actions. It didn’t matter to Obama that he had said over and over that only Congress can make or change the laws. Or that amnesty is something that only Congress can grant. Or that presidents have never been allowed to grant licenses to disobey the law. He went ahead anyway, admitting that the point of the program was to “change the law” to achieve the practical equivalent of amnesty.
Obama’s Justice Department fell all over itself to defend the program, going so far as to mislead a federal court about what the administration was doing and, at least for a time, defied the court’s order to stop the program. The Supreme Court’s decision in United States v. Texas leaves that order intact, keeping the program on ice. (At least for now.)
Nevertheless, the narrow win for the state of Texas is only a half-victory for constitutional government. Obama’s immigration plan remains blocked, but the Court’s decision was also a tie vote, which means that the Court didn’t issue an opinion condemning the government’s lawlessness. Moreover, the tie occurred because of a vacant seat on the Supreme Court that will likely be filled by the next president. Obama’s most recent Supreme Court nominee, Merrick Garland, was hand-picked because he is a judge who readily defers to executive power, and so would vote to uphold Obama’s immigration program. Garland’s nomination is dead, but if the next justice is anything like the four justices who voted to uphold the government’s program, this year’s win could quickly turn into next year’s loss.
That’s why the Supreme Court’s 4-4 decision in United States v. Texas is only a half-win. We now know that fewer than half of the sitting justices are willing to stand up to an ambitiously lawless president. Adding a tie-breaking vote for a virtually omnipotent president would only encourage future presidents to attempt bigger and bolder acts of lawlessness, further deepening the constitutional crisis.
The solution is to elect presidents who will appoint Supreme Court justices committed to upholding the Constitution, not smuggling a political agenda into their judicial decisions. What course will we choose?
Carrie Severino is chief counsel and policy director of the Judicial Crisis Network and a former law clerk to U.S. Supreme Court Justice Clarence Thomas.