On four separate occasions, President Obama swore that he would “faithfully execute the Office of President.” Yesterday, the Supreme Court told him to prove it. As expected, the justices voted to review Texas’s challenge to Obama’s executive action on immigration, known as DAPA (Deferred Action for Parents of Americans). Critically, the Court ordered the Obama administration to answer a pivotal question: Whether DAPA “violates the Take Care Clause of the Constitution.” In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. However, with pens-and-phones replacing checks-and-balances, the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers.
On November 20, 2014, President Obama announced DAPA. This executive action purported to rely on “prosecutorial discretion” to defer the deportations of up to 5 million aliens and grant them work authorization. Two weeks later, Texas attorney general Greg Abbott (who had just been elected governor and would take office in January 2015) challenged DAPA in federal court in Brownsville. Two months later — and two days before the Department of Homeland Security would have begun accepting new applicants — Judge Andrew Hanen put DAPA on hold nationwide.
Judge Hanen found fatal the government’s failure to comply with the notice-and-comment requirements of the Administrative Procedures Act (APA). Because Hanen ruled on narrow grounds, the court did not need to address whether the president had failed to comply with the Constitution’s requirement that he “take care that the laws be faithfully executed.” The case was then appealed to the Fifth Circuit Court of Appeals in New Orleans. In July, a divided court affirmed Judge Hanen’s ruling on administrative-law grounds. It, too, did not reach the constitutional question.