Keith Whitley once
sang, “you say it best when you say nothing at all.” Today, the Supreme Court hopes we all share that sentiment.
The Court’s annual term is drawing to a close, and the most closely watched case was, far and away, U.S. v. Texas—the Obama administration’s attempt to overturn the lower courts’
decisions blocking the administration’s policy of non-enforcement of federal immigration laws.
This case raised technical legal issues: whether the administration violated basic requirements of federal administrative law by failing to subject the policy to public notice and comment proceedings before adopting the policy; and whether Texas and other states have legal “standing” to challenge this policy in federal court.
But above all else, this case drew attention because of the basic constitutional issue: namely, whether the president was violating his constitutional duty to “take care that the laws be faithfully executed,” a duty reflected in the oath each president swears to “faithfully execute the Office of President of the United States,” and “to the best of my ability, preserve, protect and defend the Constitution of the United States.” (Or, in the case of President Obama’s first inauguration, an obligation to which he nearly swore an oath, before swearing the full oath a day later.)
Those basic constitutional principles made U.S. v. Texas not just the biggest constitutional case of the year, but the most significant separation-of-powers case in recent memory. Court watchers have been waiting for the Justices’ opinions, although always under the risk that Justice Antonin Scalia’s passing might leave the Court deadlocked four to four.
Today, the Court issued its decision—or, more specifically, its non-decision. The Justices published no opinions. In a
one-page, one-sentence order, the Court announced, simply, that “[t]he judgment is affirmed by an equally divided Court.” The order was unsigned, and we don’t know how the eight justices voted on the issues at hand—although one would begin by guessing that the Court broke along familiar lines, with Justices Ginsburg, Breyer, Sotomayor, and Kagan generally favoring the administration, and Chief Justice Roberts and Justices Thomas, Kennedy, and Alito favoring Texas. (The breakdown may well have been quite different on the question of Texas’s standing to sue.)
As a result, the Fifth U.S. Circuit Court of Appeals’
ruling against the administration stands, making today’s immediate winners Texas and its fellow states. The litigation will return to the lower courts, where the case is still technically at a preliminary stage—that is, the courts granted Texas a “preliminary injunction” freezing the law while the case can be fully litigated. Yet the lower courts’ decisions, while technically preliminary, were sufficiently firm in declaring the administration’s policy unlawful that the Obama administration enjoys little hope of rescuing the policy before the end of President Obama’s term.
And at the end of that term, in January, President Obama’s successor will swear the constitutional oath to “faithfully execute the Office of President of the United States,” reminding all once again of the president’s constitutional duty to “take care that the laws be faithfully executed.” Maybe the next president, unlike the current one, won’t stumble—either in swearing the oath, or in carrying it out.
Adam J. White is a research fellow at the Hoover Institution.
