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Legal Experts Say This Precedent Will Make Obama’s Executive Immigration Argument a Tough Sell at the Supreme Court


“The traditional liberals on the court haven’t been in favor of an out of control executive.”

A view of the Supreme Court, January 16, 2015 in Washington, D.C. (Drew Angerer/Getty Images)

Legal experts tell TheBlaze that the Obama administration will be facing a significant disadvantage when defending some the president's executive actions on immigration before the U.S. Supreme Court.

“The case this is most like is the recess appointments case, that would be the NLRB v. Noel Canning case,” Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, told TheBlaze. “He wanted to say, 'I get to decidee when you’re in recess.' That’s simply an untenable position, and nine Supreme Court justices agreed — even the justices he appointed. All of the liberal justices agreed, the president cannot do this.

This photo taken Friday, Oct. 3, 2014, shows the U.S. Supreme Court in Washington. (AP Photo/Susan Walsh) AP Photo/Susan Walsh

Obama made recesment appointments to the National Labor Relations Board at a time when Congress was not officially in recess, thus bypassing Senate confirmation. The high court ruled last year that such appointments are not constitutional.

Earlier this week, the U.S. Fifth Circuit Court of Appeals upheld an injunction blocking the administration’s immigration initiative and ruled that 26 states do, indeed, have standing to challenge Obama’s executive action to shield 5 million illegal immigrants from deportation. The Obama administration announced that it was appealing the ruling to the Supreme Court.

“That’s similar to what is going on here. Yes, you can have executive discretion as to when to prosecute and when not to prosecute,” Severino said. “There is a big difference in saying I’m going to choose on a case-by-case basis, I’m going to prosecute certain individuals and saying I’m going to make a gigantic decision that covers millions of people, not only not to prosecute them, but also to effectively grant them legal status.”

The appeals court made this part of the ruling when clarifying how the president's immigration plan impacts states.

“If they simply decide not to deport someone, then they don’t get legal status. They don’t get to collect Social Security. They don’t get to collect Earned Income Tax Credits. They don’t get covered by Medicare,” she said. “You’re forcing the states into expending huge amounts of their taxpayers money and their citizens money and their already strapped budget on people who are already not here legally in the first place.”

Just as liberal justices ruled against Obama in the NLRB case, the same could happen in the immigration case as well, Severino said.

“The traditional liberals on the court haven’t been in favor of an out-of-control executive,” she said. “So, you could think they would stand up and say, you know what, this is not something the executive has the authority to do. You would hope, and particularly going into an election year, you don’t know what party the next president is going to be.”

However, the result is far from a certainty, depending on what swing vote Associate Justice Antony Kennedy decides, said Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation.

“He knows, the administration knows, that they have four certain votes on the Supreme Court no matter what the law and facts are. All they have to do is persuade one other justice, probably Kennedy, to go the other way and they win,” Spakovsky told TheBlaze.

But he said the 26 states had a very solid case.

“The opinion written by the three-judge panel [on the Fifth Circuit] is 124 pages. It is a really thorough — so is the lower-court decision — exposition of the law and facts,” he continued. “Kennedy is just so unpredictable these days. I just don’t know what he’ll do about it.”

The case could also hinge on another justice, Stephen Breyer, said J. Christian Adams, former Justice Department attorney and legal commentator. He, too, likened it to the NLRB case.

“What you have in this case is similar to the NLRB case,” Adams told TheBlaze. “It’s such brazen lawlessness, it’s such abuse of executive authority that, in fact, you might get a sixth, maybe a seventh, justice, someone like Breyer, joining the Republicans to put a stop to it. Breyer occasionally does the right thing. This is such a wrong thing that he might actually come around. “

In the end, Adams expects at least a majority to go against the administration.

“This was an example of the Obama administration doing what they do best, and that’s ignore the law, that’s to suspend the law to achieve their political ends,” Adams said. “I think that probably has a very low tolerance with the Supreme Court, at least with five justices, I would imagine.”

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