Don’t Count Out the Court

Mickey Kaus Columnist
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With Obama’s executive amnesty imminent, anonymous White House aides are cockily dismissing John Boehner’s threatened lawsuit against it as a stunt. Even among opponents of executive amnesty — and I’m with them — there’s a tendency to pooh pooh the suit. It’s a loser, it will take forever to decide, it’s an attempt to ‘redirect Republican rage’ away from budgetary remedies like denying funding, etc.

Not so fast. I’m all for giving defunding a try — also holding up appointments — but don’t sell the lawsuit short. I’ll even go so far as to lay down an Yglesias style marker: If Obama’s executive action is as broad as described, the Supreme Court will strike it down.

I’m not saying this because I’ve researched the technical issues in the case — the scope of executive authority under § 103(a), 8 U.S.C. § 1103(a), case-by-case vs. categorical action, etc. Others who have more skill are doing that, including Jonathan Turley, whom Boehner has retained. I’m saying it because my limited legal experience (mainly clerking for a state supreme  court judge) suggests that the technical issues aren’t what’s important.

As state court judge Richard Neely argued in his revealing book, How Courts Govern America, there’s often a show rationale for a decision (embodied in the court’s opinion) and the real rationale. The real rationale isn’t necessarily bogus or partisan or otherwise “result oriented.” It’s just unstated. It can be something like ‘these victims have no access to the political system to protect them’ or ‘this is a much more workable rule,’ or ‘we can’t let defendants take the New York Times to trial whenever they get some detail wrong,’ or ‘my God, if we don’t resolve this 2000 election right now, the country will descend into chaos.”‘ The U.S. Supreme Court, in particular, is likely to feel a duty to intervene to preserve balance in the Constitutional system. And when conscientious judges see a need to intervene for some such intuitive, system-preserving reason, it seems like they’find a way to do it, even if it requires bending the technicalities and the show rationale to accomplish that purpose. (The show rationale — the opinion — in Bush v. Gore was unconvincing to the point of incoherence, after all.)

It’s just such a system-balancing rationale that presents itself in this case. The Court — or at least the five most conservative justices — might well reason:

My God, if Obama can do this then every President from now on will be taking, or threatening to take, expansive unilateral actions in disregard of Congress, importing entire un-legislated statutory schemes under the guise of ‘prosecutorial discretion’– acting on domestic policy, basically, the way Presidents traditionally act on foreign policy. We need to rein him in.

And so they will, whatever the technical rules of “standing” and section 103(a), 8 U.S.C. § 1103(a) say (and even pro-executive-amnesty attorney David Leopold says it’s “not an easy call” on the technicalities).

At least they’ll grant cert, you’d think.

And don’t assume it will take forever (as Rand Paul seems to think). On April 8, 1952, during the Korean War, President Truman seized crucial steel facilities. The steel companies immediately sought and got an injunction. On June 2, 1952, less than two months after Truman acted, the Supreme Court swatted him down.

Courts can move quickly when they want to. This smells like one of those cases.

Mickey Kaus