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01/26/2016

More on Texas v. U.S. and Taking Care
Michael Ramsey

Contrary to this post, a number of commentators see the "take care" issue in Texas v. United States as a big one.

In the Washington Post, Fred Barbash (Morning Mix), President or king? Translated, that’s what the Supreme Court is asking about Obama.

In The Atlantic, Garrett Epps, Will the U.S. Supreme Court Tell Obama to 'Take Care'? (although he has a pretty plausible explanation of what is going on at the end).

Rick Hills at Prawsfsblawg:  "Affirmative" Benefits versus "Negative" Non-Prosecution: May the President Provide Former When It's Necessary & Proper for the Latter? (with an interesting back-and-forth with Marty Lederman in the comments)

 

I had this thought:  Most people have seen the Court's adding of a new question on the take care clause as implying a negative view of the administration's action (that is, that it is not only unauthorized by statute but unconstitutional).  Suppose, though, that it's instead leaving an opening for the administration.  That is, is it an invitation to the administration to argue (in the alternative) that even if the action is unauthorized by statute it is constitutional under the take care clause?