There is little the Republican Party can do to prevent President Obama from issuing executive orders on Thursday that will delay the threat of deportation for millions of upwards of 5 million undocumented immigrants, but that doesn't mean that the GOP doesn't have a hope of overturning the president's actions. According to Senator Rand Paul, the United States Supreme Court is that hope.
"I think with regard to immigration reform, [the president] is doing something that Congress has not instructed him to do and in fact has instructed him otherwise, so I think the Supreme Court would strike it down," Paul told Fox News' Sean Hannity this week. "That takes a while, but that may be the only recourse short of a new president."
The court has indeed struck down the executive orders of past presidents. In 1935, it overturned five orders issued by then-President Franklin Roosevelt. Harry Truman's 1952 order to seize all steel mills in America during a labor strike was also overturned, as was President Bill Clinton's 1995 decree that the government not contract with organizations that employed strike-breakers.
When it comes to whether the Supreme Court might decide to try and invalidate Obama's forthcoming executive orders, however, conservative legal scholars are less than optimistic.
“I don’t know where in the Constitution there is a rule that if the president’s enactment affects too many people, he’s violating the Constitution,” Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School, said last week at the Federalist Society.
“There is a difference between executing the law and making the law. But in the world in which we operate, that distinction is a lot more problematic than you would think. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law. I agree this can make us very uncomfortable. I just don’t see the argument for unconstitutionality at this juncture.”