Eyebrows raise with 'take care' question

On Jan. 27, 2010, President Barack Obama delivered the annual State of the Union address, before the usual audience of legislators and VIPs, the latter group including six members of the U.S. Supreme Court.

In the course of the address, Obama adlibbed a criticism of the Supreme Court's week-old decision in the Citizens United case - a case which has turned out to be the vehicle for facilitating the funding of conservative views, which was the immediate concern of its critics. It has continued to be the object of vehement criticism from the liberal side.

According to several media outlets including the New York Times, Justice Samuel Alito, one of the six justices present and seated in their usual positions in front of the president, visibly shook his head and "appeared to mouth the words 'not true.'"

In an address at a later date, Chief Justice John Roberts found the incident "troubling."

Criticism of the court's decision is of course the right of every American. Barack Obama is an American citizen, an articulate partisan, and is particularly qualified to take positions on constitutional issues, having taught constitutional law at the prestigious University of Chicago Law School.

The members of the Supreme Court know that they are the subjects of criticism. Normally, they have the luxury of not being present when their judgments are questioned in public.

This brief long-ago incident should be recalled in light of the Supreme Court's recent action in accepting for review United States v. Texas, 15-674, a hot-button immigration law case. The case is an appeal from an injunction granted by a Texas district court (and affirmed by the Court of Appeals) against the Obama administration's actions suspending exclusions under DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and DACA (Deferred Action for Childhood Arrivals). These two programs formally suspend exclusion of two groups of undocumented immigrants, the parents of citizens and the children of citizens.

The Court of Appeals affirmed the district court's ruling that the actions violated the Administrative Procedure Act, a federal statute that establishes procedures for the adoption of many classes of government programs. The lower courts had ruled that the failure to conduct "notice and comment" hearings made the actions programs unlawful. That is the issue that was appealed to the Supreme Court.

(I have previously written about the case in these pages, "When a state stops a major federal initiative in its tracks," April 28, 2015.)

But the court, when it accepted the case for review, threw in a zinger. Its ruling was, "In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: Whether the Guidance [the formal action] violated the Take Care Clause of the Constitution, Art. II, §3."

The take care clause charges the president with the duty to "take Care" that "the Laws be faithfully executed."

There is no question that Obama acted as he did because Congress was hopelessly divided and unable to take action in the immigration area. DAPA and DACA are strong executive actions in an area in which Congress has acted, and is presently paralyzed from acting. The guidance may or may not have followed certain immigration statutes, but is arguably within the sphere of the statutory language ("subject to removal") and prosecutorial discretion, the latter a clearly executive branch prerogative.

There also little question that the take care clause has rarely if ever been invoked as a constitutional standard, and (as far as can be determined) never to impose a requirement of action on a sitting president. Precedent suggests that it would most likely raise what the Supreme Court holds to be a "political question" if invoked to force presidential action. (The court will decline to answer as "political questions" some constitutional cases if it deems them to fall within the areas assigned by the language of the Constitution to one of the other two branches of government.)

(In that sense the take care clause resembles the guaranty clause (Article IV Section 4, "The United States shall guarantee to every State in the Union a Republican Form of Government"), which the court has consistently refused to interpret with respect to innovations in state governments, treating challenges as "political questions" reserved to Congress and the states.)

Linda Greenhouse has pointed out in the New York Times that the Supreme Court's addendum of the take care clause violates a long-standing, court-made rule (one of the "Ashwander rules" - a set of principles the Supreme Court follows to avoid constitutional rulings) that the court will not consider a constitutional question unless and until it is necessary to decide it.

Why did the Supreme Court see fit to add this provision to the grant of certiorari? We know that it takes four votes to grant certiorari. Presumably the justices who voted to take the case would be the ones supplementing the questions to be argued.

Reflecting on the 2010 State of the Union incident, we can speculate that adding this issue, which was pleaded initially but played no part in the lower court decisions, could give the court the opportunity to criticize the president while he is still in office. It is clear that a decision might be rendered before the end of June.

Is this a response to the temerity of a president to challenge the Supreme Court in its presence? Or, to put it another way, does it matter that there are five Republican justices on the court?

Or are those questions too cynical?

The State of the Union address brouhaha was over five years ago, and we can but speculate as to the Supreme Court's future actions, but there is an old saying, that revenge is a dish best served cold.