The Patriot Post® · The Supremes Without Scalia: Wisdom Only by Default

By John J. Bastiat ·

We’d like to say it’s been a long time since the Supreme Court of the United States (SCOTUS) has made a bad call. Of course that would be false. We note the Supremes went one-for-two Thursday on prudent calls, and that only by default. A 4-4 split left a lower court’s correct decision on Barack Obama’s amnesty standing — at least for now. Otherwise, had the consistently inconsistent Anthony Kennedy rolled out of the wrong side of the bed that morning, we could have been looking at another loss for Rule of Law. As it was — and true to form — Justice Kennedy “happened” to vote with conservatives on the second, split vote, while voting with the leftist/statist crowd on the other (overturning himself in the process, we might add).

As a background to the split decision, one of the fundamental tenets separating the U.S. from every other nation is the Separation of Powers doctrine. This is the idea that each federal branch of government has its own “lane” within which it operates, and a system of checks and balances between the branches, as well as the States, keeps it in that lane. Far from operating in its lane, of course, is the Obama administration, which has swerved all over like a driver drunk with power.

In this instance, the former (ahem) constitutional law “professor” determined that even though Congress itself had considered the issue of amnesty for illegal immigrants and rejected it, he could make it so with his mighty pen. This despite the fact he said more than 20 times the president does not have the authority to unilaterally grant legal status and work permits to an expanded class of illegal aliens. He changed his mind for political gain, so, see? “Constitutional”!

In 2015, a U.S. federal district court struck down the executive action as an obviously unconstitutional overreach of power by the president, and the Fifth Circuit Court of Appeals upheld that decision. Thankfully, yesterday’s 4-4 “draw” at least leaves the Fifth Circuit’s ruling intact, for now. However, because the lower court’s decision doesn’t establish precedent for future cases, the SCOTUS split leaves open the possibility of a revisit of the issue when the next president assumes offices, punctuating once again the importance of November’s electoral outcome.

Never lacking an unwitting sense of irony, Obama called the ruling “frustrating” to those wanting to “bring a rationality” to the immigration system, allowing millions here illegally to “come out of the shadows.” He also said the ruling “takes us further back from the country we want to be,” even though he also admitted, “I have pushed to the limits of my executive authority.”

No, Mr. Violator-in-Chief, “frustrating” is when a sitting president flouts the Constitution, Congress, the states and a host of existing laws to enact by fiat what no other president has done or would do. There’s a reason these immigrants are “[in] the shadows”: They’re here illegally.

Of course, Obama never anticipated his executive orders would stand, but that he would get credit among Hispanics for trying and be able to blame Republicans for blocking his efforts. At the same time he does not offend American blue-collar workers whose jobs are at risk from illegal alien labor.

We note also in passing that this decision by SCOTUS would have been a precedent-setter had “Nino” still been around: Justice Scalia’s wisdom and razor-sharp jurisprudence would have quickly rendered a well-reasoned opinion and a 5-4 win for the rule of law and SCOTUS rationality. Instead, we got “The Strobe”: an on-again, off-again Kennedy, reliably unreliable, with his random, quantum-probability decisions that could go either way, depending on the flapping of a butterfly’s wings somewhere in China.

To that point, in yesterday’s other significant case, The Strobe voted with the Left: The 4-3 decision let stand racial discrimination (euphemistically known as Affirmative Action) and other quotas at the University of Texas at Austin on the basis of — we are not making this up — “the educational benefits of diversity.” No, really: That was the sum-total of the justification the college used to overcome its burden “(1) to identify the interests justifying its plan with enough specificity to permit a reviewing court to determine whether the requirements of strict scrutiny were met, and (2) to show that those requirements were in fact satisfied” (based on previous SCOTUS rulings).

The Court of course decided logic and previous rulings would be too great a burden to impose on the case, and instead decided “the educational benefits of diversity” would be sufficient. As we’ve said before about this case, any government-dictated racial-quota programs, even those “narrowly tailored” and supposedly intended meet a “compelling government interest” are nothing more than a direct assault on Essential Liberty. And, again, it re-emphasizes why the Supreme Court should be a supreme factor in November’s vote.