Texas Gov.: SCOTUS Will Be ‘Completely Rewriting’ Constitution by Favoring Obama in Immigration Lawsuit

Greg Abbott accuses of justices playing ‘naked politics,’ says best outcome a 4-4 decision

Texas Gov. Greg Abbott / AP
April 21, 2016

Texas Republican Gov. Greg Abbott said that the U.S. Constitution will be "completely rewritten" if the Supreme Court sides with President Obama in the lawsuit challenging his executive action on immigration.

Abbott, formerly the state’s longest-serving attorney general, told reporters Thursday morning that the lawsuit brought against the president by Texas and 25 other states is "framed under" the issue of immigration but in reality challenges Obama’s use of executive power to "unilaterally" rewrite laws.

"The lawsuit is about the fact that the president completely abandoned the Constitution to assume power he does not have and wrote law that he himself, as a constitutional lawyer, said he did not have the power to do," Abbott said during a roundtable discussion at the Heritage Foundation in Washington, D.C.

"The lawsuit is about the fact that, if the president wins this lawsuit, the Constitution as we know it has been completely rewritten and Congress no longer has any authority."

Obama unveiled his executive action, which would prevent millions of illegal immigrants from being deported and allow many of them to obtain work permits, following the November 2014 election. A few months later, more than half of the nation’s states sued the president, arguing that his administration overstepped its constitutional authority.

The Supreme Court heard oral arguments in the case on Monday and appeared divided. Abbott expressed concern that some of the justices on the court are playing "naked politics," which he said could hurt Texas’ chances of winning the case.

"Before Justice [Antonin] Scalia passed away, I felt our chances were good. If the court were solely to rule on the basis of the law … then it should be now an 8-0 decision. Because politics is being played now at the Supreme Court, I think the best outcome is a 4-4 split decision, which will mean that we will win, but it will not be a broad-based application across the United States affirming the principle that the president does not have unilateral authority to rewrite the law," Abbott said.

A 4-4 tie ruling would leave in place an appeals court ruling that put a hold on Obama’s plan but would set no Supreme Court precedent.

The justices debated on Monday whether Texas and the other states had legal standing to bring the case at all by asserting that Obama’s executive action would cause them financial hardship. The administration argued that Texas’ injury was self-inflicted because the state could alter its laws to deny driver’s licenses to immigrants affected by the executive action. The conservative justices on the court appeared skeptical of that argument.

"Their argument is, we’re going to give driver’s licenses to people subject to deferred action. And you’re saying, OK, that’s your injury?" Chief Justice Roberts asked. "You can take that away. And I just think that’s a real catch-22. ... [If they did that], you would sue them instantly."

The remaining liberal justices, however, seemed unconvinced that Texas would face a financial burden if the plan were implemented.

"I’m focusing on the narrow question of how Texas is hurt, specifically, and not a political disagreement," Breyer said during the arguments. "How are they specifically hurt by giving these people driver’s licenses?"

Abbott indicated Thursday that he is confident that the Supreme Court will uphold Texas’ standing in the case, citing a previous ruling in Massachusetts v. Environmental Protection Agency. The Supreme Court ruled in 2007 that Massachusetts had standing to challenge the EPA to begin regulating automobile emissions of carbon dioxides and other gasses because of potential damage from global warming.

"The Supreme Court boxed themselves in a corner because of their own liberal agenda," Abbott said. "If they do not grant us standing, they have tied their hands and they will have backtracked on [the existing ruling]."

In order to vote against standing, he said, "they will have to have some pretend game that we don’t have out-of-pocket costs or fabricate some rule that has no basis in any kind of measurement saying that [our] out-of-pocket costs just aren’t enough."

If standing is not established, the case would be dismissed.

When asked whether Texas would move to deny illegal immigrants driver’s licenses if not granted standing, Abbott did not provide a definitive answer but "double dared" the Supreme Court to deny the state the right to bring the case, which he said would "completely undermine" the 10th Amendment.

"We will cross that bridge when we get to it. I don’t think the bridge will have to be crossed," Abbott said, adding, "The Supreme Court better apply the Constitution as it is written instead of making it up."

Published under: Supreme Court