Supreme Court Hears Challenge to Obama Abuse of Executive Action Powers

Date: April 20, 2016

Case Involving Obama Administration’s Rule-Crafting Methods a Question of Executive Over-Reach

On Monday the Supreme Court heard arguments in the case US v. the State of Texas, a case brought about by President Obama’s executive action on immigration. General consensus after the arguments appeared to indicate that the Supreme Court was, at best, divided on the issue and, at worst, likely to hand the Obama Administration a loss in the case. For example, the New York Times reports that Solicitor General Donald B. Verrilli Jr. “opened the arguments with a vigorous defense of Mr. Obama’s authority to set priorities for immigration enforcement, but within minutes he was challenged by” Chief Justice John Roberts Jr. “and several of the court’s other members.” Justice Anthony Kennedy, for example, “questioned whether the president can defer deportations for millions of people without specific congressional authorization, saying ‘that is a legislative task, not an executive task.’” On its front page, the Washington Post reports that the government’s position “did not receive support from” either Roberts or Kennedy, “seen as most likely to let the program proceed.” Reuters similarly indicates that the justices seemed skeptical of the Administration’s arguments for creating executive actions, and quotes Justice Kennedy as saying, “It’s as if the president is setting the policy and the Congress is executing it. That’s just upside down.” NPR’s Marketplace reports that the NFIB was among groups that “joined a brief opposing the administration” in the case. NFIB Small Business Legal Center Executive Director Karen Harned “said their concern is with the process side of things.” She explained, “Although this case is known in the media and by most people as an immigration case, one of the issues that the Supreme Court is looking at is… whether or not the Department of Homeland Security, in this case, should have undergone notice and comment rule-making before changing the way they’re enforcing immigration laws.”

What This Means For Small Businesses

This case is one of several key cases before the Supreme Court this year that involve issues important to the small business community. Echoing the NFIB’s comments in Marketplace, the Business Journals reports that NFIB Small Business Legal Center Executive Director Karen Harned explained that the case is a matter of this Administration’s regulatory methods. She said, “The administration is essentially creating new laws with agency memos, new interpretations, guidance letters, and other informal documents, and that’s not what the Constitution permits. All of this is very dangerous for small businesses because they don’t have the notice and comment period to, at the very least, voice their concerns before new regulations go into effect.”

Additional Reading

The Los Angeles Times also covers the Supreme Court hearing.

Note: this article is intended to keep small business owners up on the latest news. It does not necessarily represent the policy stances of NFIB.

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