Guest Host: Susan Page

Demonstrators gather Jan. 15 for a rally outside the Supreme Court organized by the immigration advocacy group CASA.

Demonstrators gather Jan. 15 for a rally outside the Supreme Court organized by the immigration advocacy group CASA.

The Supreme Court takes up President Obama’s immigration plan that would shield more than 4 million people from deportation.


  • Jeffrey Rosen President and CEO, The National Constitution Center; author of the forthcoming book, "Louis D. Brandeis: American Prophet" (June 2016)


  • 10:06:54

    MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. She's recovering from a voice treatment. Last night, Michigan Governor Rick Snyder used his State of the State address to address a local issue that has become a national scandal, contaminated water in the city of Flint. We'll discuss that story in a few minutes.

  • 10:07:17

    MS. SUSAN PAGEFirst, we turn to the Supreme Court. Yesterday, the court announced that the justices would take up a challenge to President Obama's actions on immigration. To help us understand what this is about and what it might result in, we're joined by Jeffrey Rosen. He's president and CEO of the National Constitution Center. He joins us by phone from Philadelphia. Welcome, Jeffrey.

  • 10:07:41

    MR. JEFFREY ROSENOh, it's great to be back.

  • 10:07:43

    PAGESo the Supreme Court said yesterday it would hear this controversial immigration case. Tell us briefly what's at stake.

  • 10:07:51

    ROSENWhat's at stake is the nature of the president's relationship to Congress under the Constitution. In a surprising development, the Supreme Court added a constitutional question that the parties actually hadn't asked it to address. Namely, has the president violated what's called the Take Care clause of the Constitution. That's article 2, section 3 and it says that the president shall take care that the laws be faithfully executed.

  • 10:08:20

    ROSENThe lower courts have not considered that question. The parties hadn't asked the Supreme Court to decide it and according to some commentators, the Supreme Court has never before even suggested that this part of the Constitution is justiciable, which means it can reviewed by courts rather than the president's decisions about enforcement and non enforcement being left up to the political branches. So we don't know how many justices asked to add this question, but the fact that at least some of them are interested in it suggests that the president faces the possibility of having his broad policy of achieving by executive order what Congress refuses to pass by statute being constrained by the Supreme Court.

  • 10:09:05

    PAGEHow unusual is it for the Supreme Court to add on its own questions that the parties to a case like this haven't raised?

  • 10:09:14

    ROSENThat, by itself, is not entirely unusual. That happened in the celebrated Citizens United case as well and it's happened before. But what's unusual here is the fact this Take Care clause has not previously been considered by any lower court (unintelligible) Constitutional question. There have been challenges to other Obama executive orders under the Take Care clause. There have been some lower court suits against the president's decision to delay implementation of Obamacare under the Take Care clause that didn't go very far.

  • 10:09:48

    ROSENThis is -- it's novel, it's surprising and it really could create some Constitutional drama.

  • 10:09:53

    PAGENow, it does reflect an argument we've heard Republicans make that President Obama has overreached his Constitutional authority in taking these executive actions and it sounds like there's some agreement at least form some of the justices. How do you read this? Do you think this indicates that a majority of the justices are concerned about this?

  • 10:10:14

    ROSENYou know, it's impossible to say a majority. It takes only four justices to agree to hear a case in the first place and no one seems to know exactly how many justices it takes to add a question so we can't assume that even four have expressed interest in this. It might be fewer in that. But it does suggest that some of them are interested in it and it could, if the Take Care clause wins, spell challenges to all sorts of other executive orders that President Obama -- including those involving guns and Obamacare and so forth.

  • 10:10:45

    ROSENSo it's certainly a significant development. We just don't know how many justices are going to buy it.

  • 10:10:49

    PAGEAnd with huge consequences not only for President Obama, but for future presidents.

  • 10:10:54

    ROSENWell, absolutely. I mean, this really is a time, obviously, when the president and Congress are at loggerheads. Traditionally, and this is so important to stress, the Supreme Court has been reluctant to adjudicate disputes between the branches. There's something called the political question doctrine that says that when the branches can't agree, the justices will let the two of them slug it out and they're not going to intervene. Bush v. Gore was a famous case where the dissenters said that was a political question where the court shouldn't have intervened.

  • 10:11:24

    ROSENBut if the court does, really for the first time in Constitutional history, decide that its role to police the appropriate boundaries of presidential and congressional power that could really represent a significant change in the relationship between the three branches of government.

  • 10:11:39

    PAGESo that's the broadest possible impact. Let's talk about the very narrow impact in this particular case. Tell us what's involved in these immigration orders that are part of this court case and what the consequences might be on that issue in particular.

  • 10:11:54

    ROSENSure. So then now our question involves whether or not the president's deferred deportation program, which he adopted in 2014, is permissible under the law and the result of this policy would be that about 4.3 million individuals, who are in the country illegally and are the parents of a son or daughter who's a U.S. citizen or lawful permanent resident, can apply to stay and get a work permit and also apply for state driver's licenses. So the legal question that the lower courts decided was not the constitutional issue.

  • 10:12:29

    ROSENIt was a more technical question of whether the president followed the right administrative procedures in adopting this policy. There's something called the administrative procedure act that requires significant changes in policy to be offered for notice and comment for the public to say what they think and that didn't happen here. And therefore, a lower federal court, the U.S. Court of Appeals for the Fifth Circuit held that the president had violated the administrative procedure act by not allowing this to be the subject of public comment.

  • 10:12:59

    ROSENThat question is also before the court so the court could rule much more narrowly. It might not even reach the constitutional question. In the end, it could say that the president has violated the administrative procedure act and send the rule back for notice and comment. It could reverse the Fifth Circuit and say he hasn't violated the administrative procedure act and allow the program to go forward. So there are a whole bunch of possibilities and we'll only have a sense really after the oral argument about which why the justices are inclined to go.

  • 10:13:28

    ROSENThere's one other possibility which is that the court could hold that there's no standing to hear the case. Legal standing is a term that really requires there be some concrete injury before a state or an individual can file a lawsuit and here the claim is that the government says Texas, which is one of the 26 states that's objecting, hasn't suffered any concrete injury because of the deportation program. It's just objecting to it on policy grounds. Texas counters, no, we have suffered an injury. If this program goes forward, we're going to have to issue driver's licenses, for example, and that's going to cost us money.

  • 10:14:04

    ROSENSo the first question is whether there's standing to hear the case. The Supreme Court, in a case involving the Environmental Protection Agency and the challenge to the Bush administration's refusal to regulate greenhouse gas did find that there was a standing, in an opinion that Justice Anthony Kennedy joined, so if that precedent is followed, then they may allow the lawsuit to go forward. But it's possible they could just throw it out at the outset by saying there's no standing to hear the case.

  • 10:14:29

    PAGEJeffrey, just quickly, one last question. What kind of timing do you think we're looking at? We're in a presidential election year. Immigration's been a very hot issue. When would we expect the court to make a decision?

  • 10:14:39

    ROSENBy June. That's always the safe answer, that by the end of the term, which typically ends right at the end of June and that's when they issue the really controversial opinions, we'll have a decision. But this is a case where the Obama administration said, please, Supreme Court, decide this fast 'cause we've got to know whether or not this program can go forward and that's why the court agreed to hear the case so quickly so it's possible that they'll even decide it sooner than June.

  • 10:15:01

    PAGEJune, that'd be right before those political conventions to nominate the next president and his or her competitor. We'll be watching for this. Jeffrey Rosen, thank you so much for joining us.

  • 10:15:12

    ROSENIt's a pleasure. Thank you so much.

  • 10:15:14

    PAGEJeffrey Rosen, he's president and CEO of the National Constitution Center. He's the author of a forthcoming book, "Louis D. Brandeis: American Prophet."

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