Maybe the separation of powers isn’t a dead letter after all. The U.S. Constitution’s core protection against tyranny got a reprieve late Monday when an appeals court upheld a federal judge’s injunction against President Obama’s unilateral immigration order.
A three-judge panel of the Fifth Circuit Court of Appeals voted 2 to 1 that a legal challenge by 26 states has a high probability of success and thus the regulation should not be enforced until the case is decided on the merits. On Tuesday the Administration said it will appeal to the Supreme Court, which means this could be a landmark ruling before Mr. Obama leaves office.
The careful, 70-page opinion by Judge Jerry Smith eviscerates the Administration’s unprecedented claims of executive authority. The Homeland Security Department says it has executive discretion to decide whom to deport, but its detailed marching orders to immigration agents provide for almost no discretion in handling individual cases.