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 Should Obama’s order blocking deportations for certain immigrants
be invalidated by the justices, the decision could hamper future
presidents' ability to craft policy through executive fiat, legal
experts told Reuters.
"The question is not the merits of the immigration issue,” said T.
Gerald Treece, a constitutional law professor at the South Texas
College of Law in Houston. “The question is what the president's
power is.”
The high court said Tuesday it would hear the lawsuit brought by 26
states that seeks to overturn Obama's 2014 executive order that
shields more than 4 million immigrants in the country illegally from
deportation proceedings.
The Democratic Obama White House, vexed by a hostile,
Republican-controlled Congress, has employed the president's
executive authority with increasing frequency.
In addition to the executive order on deportations, Obama has acted
alone to alter provisions of the Affordable Care Act, limit carbon
emissions to combat climate change and toughen the requirements on
firearms merchants.
 Should Obama lose before the Supreme Court, the case could tie the
hands of a future president to act in similar ways.
The immigration case likely will be argued before the Supreme Court
in April, with a decision handed down at the end of June,
guaranteeing that presidential power will be a front-burner issue as
the race for the White House intensifies.
In taking the case, the justices indicated they will consider
whether Obama violated not just federal immigration statutes but the
Constitution as well, raising the possibility that the court could
articulate a forward-looking principle that limits the reach of a
president’s executive authority - particularly with regard to
domestic issues. Presidents historically enjoy more freedom to act
unilaterally when it comes to foreign affairs.
“If the Supreme Court rules against the administration on that
ground, that would have a more positive impact on the limits of the
president’s power on domestic policy,” said Todd Gaziano, a
constitutional law expert with the conservative Pacific Legal
Foundation and a former Justice Department lawyer.
The justices’ decision to allow a constitutional challenge to
Obama’s actions was seized upon by Senator Ted Cruz of Texas, a
leading contender for the Republican presidential nomination.
Cruz, the former top advocate for the state of Texas before the
Supreme Court, published an article last year in a Harvard Law
School journal condemning what he termed the administration’s
“lawlessness.”
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On the stump, however, Cruz has promised to roll back the Affordable
Care Act as well as unilaterally terminate the Obama
administration’s nuclear pact with Iran, both examples of aggressive
presidential action.
Presidents tend to favor a generous reading of their authority and
resist any court-imposed limitations, said Kenneth Mayer, an
executive power scholar at the University of Wisconsin.
Indeed, in 2008, Obama ran for president criticizing President
George W. Bush’s expansive use of executive power, which included a
warrantless wiretapping program and indefinite detention of terror
suspects. Once in office, Obama continued many of Bush’s
counterterrorism policies and has zealously guarded presidential
power.
During his second term, Obama declared a “Year of Action” and vowed
to use his “pen and phone” to issue policy directives in the face of
congressional inaction. The immigration order came soon thereafter.
Cruz could experience a similar conversion should he reach the White
House. “The world looks very different from the Oval Office than it
does from the campaign trail,” Mayer said.
Mayer predicts the court will not go as far as to set limits on a
president’s executive power, and will instead likely narrowly tailor
its ruling to the immigration issue in question. Still, he concedes
with conservatives holding a 5-4 majority “it’s possible the court
will impose some constraints.”
(Additional reporting by Jim Forsyth; Editing by Lisa Shumaker)
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