Obama’s Means May Meet Their End

“The end justifies the means” is not an argument that parties usually want to make in front of the United States Supreme Court.

Not that it never works. The court has sometimes seemed to choose the result it wants and then reached for rationales to support that outcome, as we have seen in cases ranging from Bush v. Gore to National Federation of Independent Business v. Sebelius, the case in which Chief Justice John Roberts found that the Affordable Care Act’s mandatory fee for failure to purchase insurance was, in fact, a tax.

By and large, however, if you want to win at the Supreme Court, you try to fit your arguments to the ideological leanings of either the conservative or the liberal justices, and then try to add an attractive enough bit of intellectual bait to get Justice Anthony Kennedy, the swing vote, to bite.

But in trying to defend President Obama’s much-publicized but never-implemented policy accommodating millions of people who have immigrated illegally, the administration has been basically forced into arguing that the need for a policy overhaul outweighs the president’s apparent lack of authority to provide it.

The Supreme Court will decide whether Obama actually has the power to implement his program, called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. It is expected to hear the case, United States v. Texas, sometime in April, with a ruling before the court adjourns in June. Government lawyers decided to waive their right to file a reply brief when the Court was considering whether to take the case, presumably with the goal of preserving the rapidly diminishing possibility of a final decision while Obama remains in office.

Somewhere between 4 million and 5 million people living in the country without legal permission would theoretically be spared deportation under the president’s policy. The executive branch has argued that this is no more than a managerial decision about how to expend government resources. But most of these beneficiaries would also be granted the right to work legally in this country, a privilege that Congress has not chosen to extend by statute. On this point, the administration seems to have no legal leg on which to stand, other than to argue that bringing these workers out of the shadows is the right thing to do.

On that point, I agree. So do a lot of other Americans. But Congress writes the laws that govern who can reside in this country, and under what circumstances. Neither I nor the president has the legal power to rewrite these laws.

Two lower courts have already concluded this is probably the case, which is why a temporary injunction has prevented the administration from executing its policy. The case that will now go before the Supreme Court was spearheaded by Texas Attorney General Ken Paxton, a Republican, but is composed of a coalition of 26 states. While the states have acknowledged that the executive branch holds wide authority over matters relating to immigration, they argued that extending “lawful presence,” including a variety of benefits, goes too far.

Obama’s lawyers have argued that the states lack the standing to challenge federal immigration policies. Simply disagreeing with the policy, they insist, is not enough. In fact, the administration would argue that nobody has the standing to challenge Obama’s executive order. The lower courts, however, have not bought into that position. A federal district judge in Texas and the U.S. Court of Appeals for the Fifth Circuit ruled that, at a minimum, Texas stood to suffer injury because of increased administrative costs from implementing DAPA, which would give it sufficient standing to sue. This is another element of the case that the Supreme Court will review.

I agree with the president that our immigration laws should be made more humane, more economically rational and easier to enforce. But just because Congress has not been able to bridge the nation’s divisions on this subject does not mean that the executive can change the laws to suit its whim.

The only real mystery about the outcome of United States v. Texas is whether the Supreme Court will flatly strike down Obama’s order or merely leave the temporary injunction in place while the lower courts conduct a full trial. Either way, it is highly unlikely that this president will be able to impose this policy change before he leaves office, no matter how quickly a decision arrives.

About Larry M. Elkin 552 Articles

Affiliation: Palisades Hudson Financial Group

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.

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