Paul Ryan Will Get 15 Minutes Of Fame At The Supreme Court ... Just Because

But the court should think twice before giving too much weight to what the House has to say on immigration.
Does House Speaker Paul Ryan get to speak on immigration for every member of Congress -- past and present?
Does House Speaker Paul Ryan get to speak on immigration for every member of Congress -- past and present?
Kevin Lamarque / Reuters

WASHINGTON -- House Speaker Paul Ryan (R-Wis.) isn't expected at the Supreme Court on Monday, when the justices hear arguments in an important case over President Barack Obama's executive actions on immigration.

But he and the House of Representatives will be there symbolically -- if for no other reason than they felt the need to join the case at a very late stage in the game to make a point about the Constitution.

At issue in Monday's case, which will be heard by an eight-member court, is whether the president fashioned his deportation relief programs, aimed at shielding millions of people, in accordance with the laws that Congress gave him to enforce.

To stress the point that he didn't, near the end of the hearing, the court will hear for about 15 minutes from Erin Murphy, a high-powered attorney from Bancroft Pllc. The House retained Murphy's white-shoe law firm at the eleventh hour, after its members passed a resolution along party lines to file a brief opposing the president's position at the Supreme Court.

That in itself was highly unusual, since the House already has a bipartisan legal advisory group -- made up by Ryan and House leadership from both parties -- that approves legal action whenever members of Congress feel the need to defend their institutional interests in court.

But Ryan insisted on the resolution, offering a floor speech about the need to speak "as an institution" in the immigration case, lest Obama gets away with running roughshod over the immigration laws and the separation of powers.

"We are the body closest to the people," Ryan said. "And if we're going to maintain the principle of self-government -- if we're going to maintain the principle of government by consent of the governed -- then the legislative branch needs to be writing the laws."

Never mind that the House never bothered to act on immigration reform after the Senate had done so in 2013.

So the brief was filed -- two weeks ago. And Bancroft, in coordination with lawyers for Texas and the 25 states seeking to invalidate the executive actions on immigration, also filed a petition for the House to participate at oral arguments. The court granted that request a few days later, possibly out of deference to a chamber of Congress it is not used to hearing from directly.

The House is unlikely to bring anything particularly game-changing to oral arguments. Judging from its brief, Murphy, its lawyer, will likely have much to say about how Congress makes the laws and the executive must enforce them as written, and that any refusal to do so is an abdication of its responsibilities.

But the Supreme Court should probably think twice before giving too much weight to Murphy's argument -- and instead should pay more heed to the parties that have been in the case all along: Texas, the federal government, and three women who will be representing the interests of undocumented immigrants.

The lawyer representing the House "certainly does not represent the whole Congress serving today, much less the prior Congresses that wrote America’s immigration laws," wrote former Rep. Howard Berman (R-Cal.) and Elizabeth Wydra, the president of the liberal Constitutional Accountability Center.

Wydra's organization, which has been involved in the case for longer than the House has, helped co-author a brief on behalf of Berman and a bipartisan coalition of former members of Congress who took part of the deliberations and drafting of key parts of the immigration code.

Implicit in Wydra and Berman's argument is that the current law is a complex web of statutes, written and rewritten over time by different lawmaking bodies that worked hard to create an immigration system that is functioning -- more or less -- the way they envisioned it.

Or, as Sen. Richard Lugar (R-Ind.) wrote in The New York times on Monday: Obama "has operated under longstanding provisions of law that give the executive branch discretion in enforcement. This presidential prerogative has been recognized explicitly by the Supreme Court."

Why should the current House, which hasn't done anything meaningful to fix the immigration laws, be taken more seriously by the Supreme Court than the ones that actually did something to create the current system, however imperfect it may be?

That's more a political question than a legal one. But it is certainly one the justices should take into account in a case that, at its core, is as much about politics as it is about what a president can do under the law.

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