Elizabeth Slattery writing in The Daily Signal
Chief Justice (in waiting) Barker opining...
* * *
The Supreme Court heard oral arguments in a case brought
by Texas and 25 other states...
* THAT MAKES 26 STATES... A MAJORITY OF STATES...
...challenging the Obama administration’s attempt to give
legal status and work authorizations to more than four million illegal
immigrants.
At the argument, the justices wrestled with whether the
Obama administration exceeded its authority and whether the states have
standing to sue.
* FOLKS... IF 26 STATES SUING - A MAJORITY OF OUR UNITED
STATES - DON'T HAVE "STANDING"... THEN I'D SAY THE ENTIRE CONCEPT OF
"STANDING" IS RENDERED MEANINGLESS.
In 2012, the Obama administration created the Deferred
Action of Childhood Arrivals program, enabling 1.7 million illegal aliens...
* NOTE: "ILLEGAL" ALIENS. (AND POP QUIZ: WHICH
BRANCH MAKES THE LAWS IN THIS COUNTRY - AT LEAST WHEN WE'RE SPEAKING OF RESPECTING CONSTITUTIONAL SEPARATION OF POWER?)
(*SMIRK*)
...under 30 years old brought to the U.S. as children to apply
for work authorization and deferred deportation. A deferred action is relief
from deportation or removal proceedings granted by the Department of Homeland
Security.
* BY THE WAY, FOLKS... I TOLD EVERYONE WHO WOULD LISTEN
BACK AFTER 9/11 THAT CREATION OF THE DEPARTMENT OF "HOMELAND
SECURITY" WAS A MISTAKE. BUT... THANKS TO BUSH AND THE REPUBLICANS...
(*SHRUG*)
Then, in 2014, this program was expanded by, among other
things, eliminating the age cap and increasing the term of deferred action and
employment authorization from two to three years.
The administration also created Deferred Action for
Parents of Americans (DAPA), conferring deferred action on illegal aliens whose
children are U.S. citizens or lawful permanent residents, provided no other
factors make deferred action inappropriate.
* FOLKS... THERE'S ADMINISTRATIVE AND PROSECUTORIAL
"DISCRETION"... AND THEN THERE'S SIMPLY MAKING IT UP AS YOU GO ALONG.
WHAT OBAMA HAS DONE IS THE LATTER. (A POWER GRAB PURE AND SIMPLE.)
In addition to lawful presence, Deferred Action for
Parents of Americans grants deferred action recipients benefits such as work
authorizations, driver’s licenses, Social Security, and other government
benefits, costing an estimated $324 million over the next three years,
according to the district court.
* OBVIOUSLY UNCONSTITUTIONAL...
* BUT THEN AGAIN... SO WAS OBAMACARE...
(*SHRUG*)
Last November, a federal appeals court ruled in favor of
the states, finding that they were likely to succeed on the merits of their
claims that DAPA violated the Administrative Procedure Act.
Here are the four issues the Supreme Court justices are
considering:
1) Do the states have standing to challenge this program?
* YES THEY DO!
2) Is the program a lawful exercise of the Secretary of
Homeland Security’s authority under existing immigration laws?
* NO IT'S NOT.
3) Is the program subject to the Administrative Procedure
Act’s notice-and-comment procedures?
* GOT ME ON THAT ONE...
(*SCRATCHING MY HEAD*)
4) Does the program violate the Take Care Clause of the
Constitution?
* YES.
U.S. Solicitor General Don Verrilli was first up at the
oral argument. Nearly half of his time was taken up with questions about
whether the states have standing to bring this suit.
In any lawsuit, the plaintiff must establish there is an
actual injury that is fairly traceable to the defendant’s conduct and it is
capable of being redressed by a court. The lower court held that Texas has
standing to sue because Deferred Action for Parents of Americans would enable
at least 500,000 illegal aliens to receive subsidized Texas driver’s licenses,
costing the state millions of dollars.
The Obama administration has argued that this injury is
“one of Texas’s own making,” because the state could eliminate its driver’s
license subsidy program. At the oral argument, Chief Justice John Roberts
seized on this, pointing out that it’s “a real catch 22” if Texas can’t sue
based its financial injury from granting driver’s licenses when it might be
sued by the federal government if it fails to do so.
Turning to the merits of whether DAPA is consistent with
existing immigration laws, Justice Anthony Kennedy pointed out that it seemed
“upside down” that the president, rather than Congress, could expand
deportation deferrals to four million individuals.
* "SEEMS," HUH?
(*SNORT*)
* WELL THANKS FOR THAT, JUSTICE KENNEDY...
(*SMIRKING AS I SHAKE MY HEAD*)
Justice Ruth Bader Ginsburg chimed in, asking whether it
matters that Congress has not appropriated enough funds to deport all 11
million illegal aliens currently in the country.
* THE ANSWER IS "NO."
When Scott Keller, solicitor general of Texas, took the
podium, he barely got a few words in before Justice Sonia Sotomayor pounced
with a series of questions about whether the actions of past presidents (such
as Reagan, Clinton, and Bush) were really all that different from Obama’s DAPA
program.
* THEY WERE. IN SHORT... AS I'VE EXPLAINED ON PAST
OCCASIONS... THEIR ACTIONS WENT "WITH THE GRAIN" OF LAW AND CONGRESSIONAL
INTENT/APPROVAL. OBAMA'S ACTIONS DON'T.
(*SHRUG*)
* ALSO... THE SHEER SCALE AND EFFECT...
(*SIGH*)
Keller explained that Congress (which is the lawmaking
branch, after all) must authorize the executive branch to act before it does so
and that DAPA is “unprecedented, unlawful, and the biggest change in
immigration policy ever.”
* YEP.
Justice Stephen Breyer brought the conversation back to
the matter of standing. He noted that the Supreme Court rejected analogous
cases in from 1923 involving claims that the federal Maternity Act interfered
with states’ authority. Keller responded that unlike the 1923 cases, which
pressed claims based on taxpayer standing (a theory long rejected by the
justices), DAPA imposes an injury on Texas’s sovereign interests. Breyer
countered that this theory would allow states to seek to invalidate numerous
federal laws.
* NO. WHAT IT MEANS IS THIS: COMMON SENSE DICTATES THAT
WHEN A M*A*J*O*R*I*T*Y OF THE STATES ACT IN SOLIDARITY THAT MAJORITY ALONE
SHOULD BE SEEN AS A CLEAR DEMONSTRATION OF "STANDING" BY THE U.S.
SUPREME COURT.
(*SPITTING ON THE GROUND*)
Breyer, however, seemed to be overlooking a case of more
recent vintage, Massachusetts v. Environmental Protection Agency (2007), in
which the Supreme Court found that states had standing to challenge the
agency’s denial of a rulemaking petition to regulate greenhouse gases as air
pollutants.
* AND THERE'S THAT TOO...
(*WINK*)
(*GRIN*)
In that case, the majority (including Breyer)...
(*GUFFAW*)
* FOLKS... YA CAN'T MAKE THIS $HIT UP...
...wrote, “States are not normal litigants for the
purposes of invoking federal jurisdiction.” A state has an “independent
interest…in all the earth and air within its domain” that “reinforces the
conclusion that its stake in the outcome of the case is sufficiently concrete.”
* AND THAT'S JUST A SINGLE STATE - NOT 26 STATES!
(*CHUCKLING*)
If you substitute “earth and air” for any number of state
resources, such as education, healthcare, and law-enforcement costs, that DAPA
implicates, Texas’s argument doesn’t sound all that different. (It’s worth
noting that Massachusetts v. EPA has been maligned by conservatives as creating
a new rule for standing.)
At its core, this case underscores the importance of each
branch of the federal government respecting the limits of its authority and of
each branch working to keep the others in check.
* ACTUALLY... WHAT THIS CASE UNDERSCORES IS THAT OBAMA
HAS LITTLE RESPECT FOR CONSTITUTIONAL LIMITATIONS UPON HIS AUTHORITY; IN
FACT... WHEN PUSH COMES TO SHOVE... WHEN IT COMES TO HIS ACTIONS... HE DOES NOT
RECOGNIZE SEPARATION OF POWER.
(*SHRUG*)
* AND THE LARGER PROBLEM IS... HE'S NOT ALONE... AND SUCH
BELIEFS ARE LARGELY BIPARTISAN.
(*SPITTING ON THE GROUND*)
President Obama repeatedly acknowledged that he lacks the
authority he now asserts.
* YEP. (INTELLECTUAL CONSISTENCY WAS NEVER AN OBAMA
STRONG POINT...)
A year before the administration announced its new
immigration “enforcement priorities” (leading to the current case), Obama said:
"I’m the president of the United States. I’m not the emperor of the United
States. My job is to execute laws that are passed. And Congress right now has
not changed what I consider to be a broken immigration system. And what that
means is that we have certain obligations to enforce the laws that are in
place, even if we think that in many cases the results may be tragic…We’ve kind
of stretched our administrative flexibility as much as we can."
* FRANKLY, FOLKS... OBAMA'S OWN PAST STATEMENTS WHEN HELD
UP AGAINST HIS ACTIONS PROVIDE LOGICAL BUTTRESS FOR BELIEVING THE MAN SHOULD BE
IMPEACHED, CONVICTED, AND REMOVED FROM OFFICE. CLEARLY HE'S KNOWINGLY AND
DELIBERATELY ABUSED HIS POWERS AND THUS VIOLATED HIS OATH OF OFFICE.
Let’s hope the Supreme Court justices agree with the
Obama of 2013 and not the Obama of 2016 whose administration has promised
“audacious executive action” in his final year in office.
* I WON'T BE SURPRISED IF ALL FOUR LEFTISTS VOTE TO
UPHOLD OBAMA'S ACTIONS BECAUSE... THEY'RE OBAMA'S ACTIONS.
* WORSE... I WON'T BE SURPRISED IF KENNEDY AND/OR ROBERTS
JOIN THE LEFTISTS.
If the Supreme Court does not help restore the balance of
power we will be farther down the road toward becoming a government of men,
rather than one of laws, as intended by our Founding Fathers.
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