on the administration’s policy on immigration reform appears in today’s New York Times under the title Judicial Energy and the Supreme Court. In it Greenhouse sets up her argument by referring to a book on Executive energy penned a number of years ago by Terry Eastland, a one-time Justice Department official under Ronald Reagan, who
took to task both President Ronald Reagan, for whom he had worked in the Justice Department, and the first President Bush for having failed to use all possible levers of presidential power to advance the conservative agenda.
After describing the thrust of Eastland’s book, she offers this observation:
I wonder whether Mr. Eastland, who these days criticizes President Obama’s “unilateral governance” and “Congress-circumventing actions,” is planning a new book praising “energy in the judiciary.” Someone on his side of the street certainly should write one. The majority opinion is as cynical an exercise of judicial authority as I can remember — and no, I haven’t forgotten Bush v. Gore. The dissenting judge, Carolyn Dineen King, nailed it when she said the case “essentially boils down to a policy dispute” and that “the policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.” Chief Justice John G. Roberts Jr. could hardly have said it better himself. In fact, he did say essentially the same thing, in his dissenting opinion last June in the same-sex marriage case.
The rest of the column is a thorough examination of the logic — or rather lack of logic — judicially speaking, for the decision of the 2-1 majority in the 5th Circuit in State of Texas v United States in which the judges blocked implementation of the Obama administration’s use of prosecutorial discretion as a mean of providing some relief for undocumented aliens.
Please keep reading.
Greenhouse reviews the history of the case, including the decision in the District Court. She notes that the government’s request for an expedited review was ignored by the majority, who seemed intent on running out the clock so that the administration could not get a review of the decision in the current court session ending in June (perhaps in hopes of a Republican president in January 2017 who would reverse the executive order).
Of greater importance is the legal analysis Greenhouse provides.
Here I should note the following: the intro for her bio at Wikipedia is
Linda Greenhouse (born January 9, 1947) is the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School.[1] She is a Pulitzer Prize winning reporter who covered the United States Supreme Court for nearly three decades for The New York Times.
She has a BA in Government from Radcliffe College (before it was completely merged with Harvard College), and a law degree from Yale.
In short, she is considered one of America’s most distinguished legal commentators.
She examines both the opinion of the majority, and what she calls the “unanswerable dissenting opinion” of Judge Carolyn King, former Chief Justice of the Circuit whom Greenhouse describes as one of the country’s most highly respected jurists. She takes apart some of the reasoning in the opinion of the court, both as to substance - proper use of judicial discretion, citing of precedent (a case involving the EPA and Massachusetts involved legislation that specifically authorized a state to file an action), issues of standing — and to tone — noting the snarkiness of the majority in responding to the criticisms of Judge King’s dissent.
Greenhouse notes previous statements by both Chief Justice Roberts and Justice Scalia that would seem to require them to disagree with the decision by the 5th Circuit. She lays out the basis of her disagreement with the decision in her penultimate paragraph, the first portion of which reads as follows:
The exercise of prosecutorial discretion, Judge King observed, is not subject to judicial review. She also noted that Congress in 2002 delegated to the Department of Homeland Security authority to “establish national immigration enforcement policies and priorities.” Only by a twisted characterization of the program as a “decision to change the immigration classification of millions of illegal immigrants on a class-wide basis” did the Fifth Circuit majority find the deferred action program to be outside the frame of that delegated authority.
As to the possible politics, she notes that Donald Trump reacted with glee to the decision, and of course we kno what he thinks of immigrants, even wanting to deport the American-born children of undocumented aliens despite the clear language of the 14th Amendment defining citizenship as including anyone born in the US.
I do urge reading this column. Which is why I will close with the final paragraph offered by Greenhouse:
Properly understood, with all its qualifiers, I’m not sure the deferred action program even counts as the kind of “energy in the executive” that Terry Eastland called for so many years ago. In reviewing the decision, the Roberts court has a chance to demonstrate that it cares about principle more than politics. That’s the kind of energy the judiciary needs now.