Rogue Judges, Leftist AGs and the DACA Follies



Photo credit: Wikimedia; taken by Pax Ahimsa Gethen Creative Commons Attribution-Share Alike 4.0 International license See:

DACA (Deferred Action for Childhood Arrivals) is in the news again, as lawmakers battle over the terms to be included in a bill to legalize the beneficiaries of Obama’s illegal 2012 amnesty. The president insists he wants the bill to include funding for his promised border wall and provisions to eliminate chain migration and the diversity visa.

This comes in the aftermath of two recent terror attacks in New York City. On November 1st,  Sayfullo Saipov is alleged to have murdered eight people using a rented truck as the murder weapon—a method suggested by ISIS. Saipov, who was from Uzbekistan, entered the country on a “diversity visa,” a lottery that allows 50,000 people to come in, at random from countries with a low immigration rate.

Commenting on the attack, President Trump revealed that Saipov may have brought in almost two dozen family members through chain migration: “He was the point of contact — the primary point of contact for, and this is preliminarily — 23 people that came in, or potentially came in with him.”

State Department figures show that in 2015, the latest year available, over 14 million people applied to enter under a diversity visa. Uzbekistan is the second-largest source for applicants, with 1,387,420 that year; 4,368 of them were approved.

On December 11th, Akayed Ullah, an immigrant from Bangladesh, attempted to set off a bomb in the New York subway, police say. “A Homeland Security Department spokesman said Mr. Ullah was admitted to the U.S. on a family visa in 2011….Homeland Security Department spokesman Tyler Houlton said the citizen relative came to the U.S. under the visa lottery,” reported The Washington Times.

Bangladesh had been ineligible for the program for a number of years because it surpassed the limit on number of immigrants. “But during the past two years its citizens were eligible,” wrote The Post, “nearly 8,500 people from Bangladesh won the lottery.

“In 2016, the last year for which there are complete numbers, more than 18,000 people immigrated from Bangladesh based on family ties.” Compare that to 8500 over a two-year period.

The president has tried to limit immigration from nations with terrorism problems and/or were unable to provide information needed for proper vetting of immigrants. But his executive orders were blocked by federal judges ruling on lawsuits launched by blue-state AGs. These judges can only be called “rogue judges,” because they wielded power they did not possess, over immigration, power that the Constitution gave exclusively to the Legislative Branch of our government.

Under the Immigration and Naturalization Act (INA), 8 U.S. Code § 1181, “…no immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and (2) presents a valid unexpired passport or other suitable travel document, or document of identity and nationality…”

That seems simple enough. Simpler still is the Constitution’s mandate in Article I, Section 8, clause 4 of the Constitution that entrusts the Legislative Branch with the duty to “establish an uniform Rule of Naturalization.” [Source: American Bar Association]

Does that give Congress total control over immigration? The ABA says:

From the late 19th century through the present day, the Supreme Court has upheld almost every federal immigration regulation against constitutional challenge, citing Congress’s plenary [total] power in this area. As Justice Kennedy wrote in the 2012 decision in Arizona v. United States:
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.… This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations….

The Congress has delegated to the president the authority to deny entry of “any class of aliens” he thinks would be “detrimental to the interests of the United States,” in 8 USC § 1182(f):

(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Yet, we’ve seen federal judges like Robart in Washington State and Watson in Hawaii boldly go where no judge has gone before, exploring strange new worlds of jurisprudence: from conferring constitutional rights on people who’ve never set foot on American soil, to asserting that the presidential power cited above could be nullified by citing Trump’s campaign statements. They, and numerous others blocked the president’s immigration executive orders banning immigrants from terror-prone countries—most of which also had Muslim-majorities.

The most logical explanation for their behavior is that when President Trump eliminates anything President Obama did, it’s the duty of the Judiciary to put it back. Never mind Obama’s one wise statement: “Elections have consequences.”

The Media went mad, along with nationwide organized protests, decrying the president’s, “cruel” and “racist” EOs. However, on December 4th, the Supreme Court ruled that Trump’s travel ban could go into full effect against six Muslim-majority nations, while lawsuits proceeded through the lower courts. The SCOTUS will before long hear the case on the merits. This demonstrates, beyond all doubt, that the president’s prior orders were legal and constitutional. But of course they were.

Authority over immigration undeniably belongs to the president, but nowhere is the president empowered to by fiat allow thousands, even millions of illegals to remain here, in violation of the INA. Perhaps no president has declared and re-declared that fact more often than President Obama. Yet, in 2012 he abruptly discovered that he possessed that power, after all. Obama directed his DHS secretary to issue a memo that children brought to America by illegal alien parents had the right to stay in America if they met certain qualifications. That directive was DACA.

The rationale was that prosecutors can choose not to enforce immigration laws. This is clearly absurd because the Constitution decrees in Article II, Section 3 that the president “shall take care that the laws be faithfully executed.” This is called the “Take Care Clause.”

It’s therefore indisputable that DACA was both illegal and unconstitutional. It openly excused hundreds of thousands of illegals from observing the law—that’s unabashed amnesty. Two years later, he proclaimed a new amnesty of ~4 million more illegals called “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA).

Twenty-six states, led by Texas sued the United States, alleging violation of the Take Care Clause among other things. They sought an injunction to block the implementation of DAPA. On February 16, 2015, Federal District Judge Andrew Hanen ruled in the states’ favor on a national basis.

After an appeal, the Fifth Circuit Court of Appeals on November 9, 2015 upheld the injunction, declaring: “The INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” On June 23, 2016 the Supreme court affirmed the judgement “by an equally divided court.”

If President Obama was the president who most often said he lacked the authority to rewrite the law—though after DACA, he admitted he’d done just that—Donald Trump was the presidential candidate who most often promised to annul his predecessor’s unconstitutional amnesties on day one.

Unfortunately, after his inauguration he failed to annul DACA, citing those “incredible kids”—even though they could be as old as 36 today. His DHS continued to process DACA applicants, just as Obama’s DHS had. Newsweek reported that on June 15th “Trump’s Department of Homeland Security had announced the Obama policy will remain in effect. Enrollees ‘will continue to be eligible’ to renew work permits and no permits ‘will be terminated prior to their current expiration dates.’ DHS has said more recently no final decision on the program has been made.”

The Trump Admin. did cancel DAPA, which was of no consequence, since the courts had already blocked it. Newsweek also reported that eleven Republican states had sent a letter to Attorney General Sessions threatening if the administration does not end DACA, they will amend their successful lawsuit against DAPA to include DACA, which suffers from the same legal shortcomings.

Trump faced the embarrassing prospect of battling in court to defend the program he’d promised to cancel. Being advised by his AG that this was almost a certain loser, he finally did the right thing and threw the ball to Congress: he would cancel DACA after a six-month delay, allowing Congress to pass legislation legalizing the DACA beneficiaries.

Apparently, the rogue attorneys general who’d challenged the unquestionably legal Trump immigration EOs lack any sense of embarrassment. Washington state’s AG Ferguson, said: “If President Trump follows through on his reported decision to cancel DACA after a six-month delay, the Washington Attorney General’s Office will file suit to halt this cruel and illegal policy and defend DACA recipients. We have been working closely with legal teams around the country, and we expect to be joined by other states in this action.

“As Attorney General, I will use all the legal tools at my disposal to defend the thousands of Dreamers in Washington state.”

This from the man who has sued the Trump Administration 18 times. Actually, Washington is among at least 15 states that have sued to preserve DACA. Quotes from their AGs are an embarrassment. “‘Trump’s plan is “cruel, shortsighted, inhumane” and driven by a personal bias against Mexicans and Latinos,’ New York Attorney General Eric T. Schneiderman said.”

“‘They are the best of America,'” Schneiderman said.”

I guess the legal residents of New York are chopped liver.

Given the sequence of events outlined above, it’s plain to any rational person that DACA is illegal, not Trump’s cancellation of DACA. It’s unimaginable that the Supreme Court, with Gorsuch now aboard, would rule in favor of the blue states. Four of the justices have already ruled against DACA’s sister program and Gorsuch would surely join them in ruling against DACA.

Another rogue judge has already ruled, proving by his own words that the Left is devoid of common sense, blinded by ideology. U.S. District Judge Nicholas Garaufis, in Brooklyn issued a ruling that 16 states could sue the president; it contained this bizarre statement: “Defendants offer no convincing reason why states should have standing to challenge the DACA program but not to challenge the decision to end that program.” Judge Garaufis wrote.

It should be obvious to anyone that states have the right to challenge an illegal federal action that affects them, but no state has the right to demand that the government must continue that illegal action.


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