Judging without Law

The Supreme Court has decided that President Obama's executive order that implemented DACA despite the Congress refusing to legislate an actual law cannot be invalided by a countering executive order by President Trump.  That presents some serious problems.  The purely executive action of one president has been enforced against a later president.  Ergo, DACA is being treated as law.  President Obama has successfully legislated his policy preference without the participation of the legislative branch!  If Biden is elected, will the Supreme Court uphold Trump's executive orders when Biden seeks to revoke them?  If yes, then presidents are legislators.  If no, the Supreme Court is picking sides rather than ruling on law.  Both of those options are disastrous for the Rule of Law.

This was not the only troubling ruling from the court.  Much as the authors of the 14th Amendment would be amazed that they had codified birthright citizenship for the children of illegal aliens, the authors of the 1964 Civil Rights law would be dumbfounded to learn they had provided legal protections for homosexuals and transgenders.  If the legislature can't get these policies implemented then it is up to the court to bypass the democratic process and just make it happen.  That's how we got gay marriage and now this.  Why do we have Congress?

In a democratic society, big issues must be decided through the elective bodies.  When courts mandate a solution, that is just a majority vote of 9 unelected judges rather than an extended debate that involves hundreds of legislators who must answer to voters.  Look at the abortion debate.  Rather than solve the problem, Roe v. Wade has created an irreconcilable division that has roiled the country for nearly 50 years.  It is why judicial fights are so brutal now because everyone knows that courts - not legislators - will have the final say.  That's not democratic.  That is not the rule of law, but the rule of judges.

What Law Did He Adjudicate?

District Judge John Bates has ordered the government to restart the Deferred Action for Childhood Arrivals (DACA) program.  The DACA law was never passed.  Congress declined to pass the DREAM Act so President Obama issued an executive order for the government to enforce immigration laws as if Congress had passed a watered-down DREAM Act.  Let us ignore the legality of the president enforcing a law that was not passed and accept that the executive order was a temporary workaround.  However, executive orders are entirely under the discretion of the sitting president.  Obama countermanded many Bush executive orders and Trump can do the same with Obama's executive orders.  The president is not bound by the executive actions of his predecessors.  There is no law for a judge to rule upon.  He is ruling upon discretion that is completely in the hands of the executive branch.  Unless Congress has passed a law that changed the discretion since Obama implemented DACA, the court has no role if Trump used that same discretion to eliminate the program.  This is obviously judicial overreach and will clearly be overturned on appeal.  This is judicial activism.

DACA

 [The president] shall take Care that the Laws be faithfully executed

U.S. Constitution, Article 2 Section 3

The Dream Act, which was first proposed in 2001, was legislation that would allow those who are brought into the United States as minors to be granted a conditional amnesty.  Though technically illegal immigrants, they had no say in the matter and have spent the majority of their lives as Americans.  The Act has been debated repeatedly but never passed.  That last point is significant.  There was no law passed for the president to faithfully execute.  When President Obama pushed for the Dream Act, Congress declined to pass it.  Therefore, immigration law treats 'Dreamers' no differently than any other illegal immigrant.  The president takes an oath to faithfully execute the laws that have been passed, not laws he wished had been passed.  However, limited resources often mean that a president must chose where to put emphasis.  DACA was more than that.  President Obama implemented an executive amnesty that not only told prosecutors to ignore Dreamers but also granted legal status via work permits.  The president was not only being unfaithful to the laws that Congress had passed, he was enforcing laws that they did not pass.  Yet another impeachable offense by President Obama.  Of course, impeachment is pointless in our era and the Republicans were too spineless to use the power of the purse.

 

DACA is unconstitutional and should be revoked.  This is something Congress must legislate.  President Trump has provided Congress with 6 months in which to pass the Dream Act.  Let's see if they pass it this time.  If not, let the deportations begin.  Enforce the laws or change the laws but don't ignore the laws.  That is the path to anarchy and collapse.

Two-Faced Speaker

Having said all of that, there are people who are in limbo. These are kids who know no other country, who were brought here by their parents and don't know another home. And so I really do believe there that there needs to be a legislative solution.

Paul Ryan, Speaker of the House

Yet again, the speaker is showing his true colors.  When President Obama put forth the Deferred Action for Childhood Arrivals (DACA) as legislation in 2012, the Congress - notably the House - shot it down.  Despite lacking any legislation, Obama directed the executive agencies to enforce immigration law as if DACA had passed.  Now that President Trump is proposing to enforce the laws as the Congress has written them and past presidents have signed them, Ryan has an about face.  Oh, he was only too happy to let Obama ignore the law while he could claim the moral high ground.  He was just fooling the rubes in flyover country.  It looks more and more like the two parties have been engaged in Kabuki theater, giving the impression that they oppose one another when they have really been working in concert.

 

Never trust a politician.