Will Obama's Illegal DREAM Amnesty be his Next Big Supreme Court Loss?

If the DREAM amnesty falls apart, Obama's threat to unilaterally apply a larger amnesty also implodes.


Ordinarily it would have been rather hard for anyone to have the standing to challenge Obama's illegal DREAM amnesty. But the attempt to force Arizona to issue drivers licenses to the illegals may have put the case on a path to the Supreme Court.

Calling the state policy motivated by animosity, the 9th U.S. Circuit Court of Appeals on Monday ordered that “dreamers” who the federal government allow to work in this country also be issued Arizona driver's licenses, at least for the time being...

The governor, however, intends to fight on, calling the DACA program “President Obama's lawless directive.” In a prepared statement, she said Obama and his Department of Homeland Security are legally powerless to grant any rights, including the right to drive, to these dreamers.

“Only Congress can do that,” Brewer said. She called the ruling “especially disturbing given the current influx of illegal aliens, a crisis President Obama created and escalated.”

Judge Pregerson is a Carter appointee. The 9th circuit is Democrat frontloaded so the ruling is completely unsurprising, but the stage is set for a bigger showdown.

Brewer's argument is that the deferred action is unconstitutional. And that will move the ball, eventually, to the Supreme Court. Once the debate stops being about legal and illegal immigration, it goes back to being a question of separation of powers.

Let's hear it from Ted Cruz on that...

“In both law and politics, I think the essential battle is the meta-battle of framing the narrative,” Cruz told me. “As Sun Tzu said, Every battle is won before it’s fought. It’s won by choosing the terrain on which it will be fought. So in litigation I tried to ask, What’s this case about? When the judge goes home and speaks to his or her grandchild, who’s in kindergarten, and the child says, ‘Paw-Paw, what did you do today?’ And if you own those two sentences that come out of the judge’s mouth, you win the case.

“So let’s take Medellín as an example of that,” Cruz went on. “The other side’s narrative in Medellín was very simple and easy to understand. ‘Can the state of Texas flout U.S. treaty obligations, international law, the President of the United States, and the world? And, by the way, you know how those Texans are about the death penalty anyway!’ That’s their narrative. That’s what the case is about. When Justice Kennedy comes home and he tells his grandson, ‘This case is about whether a state can ignore U.S. treaty obligations,’ we lose.

“So I spent a lot of time thinking about, What’s a different narrative to explain this case? Because, as you know, just about every observer in the media and in the academy thought we didn’t have a prayer. This is a hopeless case.”

Cruz decided to change the narrative into one about the separation of powers. He refashioned the case from a fight between Texas and the United States to one between the executive branch and the legislative branch of the federal government, with Texas advocating for Congress. He argued that the President could not order Texas to reopen the cases without the specific authorization of Congress.

If the DREAM amnesty falls apart, then Obama's threat to unilaterally apply a larger amnesty also implodes. And that will neuter the Republican push for a preemptive legislative amnesty.