Frustrated by his inability to get an immigration reform bill through Congress, President Obama decided to rewrite the law himself.

So in November of 2014, just after the House killed a Senate-passed immigration bill, the president signed an executive order giving some 4.9 million illegal immigrants — many of them the parents of U.S. citizens or legal residents — what amounts to a grant of immunity. Or as the White House Solicitor General Donald Verrilli defined it to the U.S. Supreme Court in argument this week, they were given a grant of “lawful presence.”

That allowed them not merely to avoid deportation but to work and to collect an array of benefits. And that’s where Texas and eventually 25 other states said just wait a darned minute and sued the federal government for a vast overreach.

The issue here is less about a broken immigration system — which we agree desperately needs fixing and a path to legal residence for the estimated 11 million immigrants who are here illegally — than it is about an abuse of presidential power. And it was that issue that the court’s more conservative members pursued during Monday’s argument.

“What we’re doing here is defining the limits of discretion,” Justice Anthony Kennedy said. “And it seems to me that that is a legislative, not an executive act.”

Chief Justice John Roberts asked if the president could grant “deferred removal to every unlawfully present alien in the U.S. right now.” At least Verrilli cited statutory restraints on the president there. But then he’s already defied some of those “restraints.”

A 4-4 decision would allow a lower court ruling against the president to stand and halt this particular assault on the Constitution. But it surely shows how critical the next election, however loony it seems now, has become.


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