The Concept of Separation of Powers Now in the Hands of SCOTUS



On Tuesday, the High Court decided to take up Texas et al. v the United States, on appeal by the Administration after losing at the District Court and the Fifth Circuit Court of Appeals, in November. The latter not only ruled that the stay placed by District Court Judge Andrew Hanen, which halted Obama’s patently illegal and unconstitutional DAPA amnesty of 4.3 million illegal aliens, should stand. It also ruled that the Immigration and Naturalization Act does not authorize what Obama’s DHS has done.

The Fifth Circuit:

“Twenty-six states (the “states) challenged DAPA under the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution; in an impressive and thorough Memorandum Opinion and Order issued February 16, 2015, the district court enjoined the program on the ground that the states are likely to succeed on their claim that DAPA is subject to the APA’s procedural requirements.”

In June, 2012, the president’s Department of Homeland Security—poorly named because its actions have consistently made America less safe—had implemented the Deferred Action for Childhood Arrivals program (“DACA”), which allowed DHS to use “prosecutorial discretion” to shield from deportation up to 1.2 million young people.

Space doesn’t permit going into the details. About 700,000 people have applied to date.

The Fifth Circuit:

“In November 2014, by what is termed the ‘DAPA Memo,’ DHS expanded DACA by making millions more persons eligible for the program via extending the eligible dates by which applications could be made and removing the age limit on applicants.

“DHS also implemented a new program called ‘Deferred Action for Parental Accountability’ (DAPA), which applies to ‘individuals who . . . have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or lawful permanent resident’ and meet five additional criteria.”

“4.3 million would be eligible for lawful presence pursuant to DAPA …. persons granted lawful presence pursuant to DAPA are no longer “bar[red] . . . from receiving social security retirement benefits …. The district court determined―and the government does not dispute―’that DAPA recipients would be eligible for earned income tax credits once they received a Social Security number.’”

The states sued to prevent DAPA’s implementation on three grounds:

“DAPA violated the procedural requirements of the Administrative Procedure Act (APA) [it] did not undergo the requisite notice-and-comment rulemaking. … Second, the states claimed that DHS lacked the authority to implement the program even if it followed the correct rulemaking process, such that DAPA was substantively unlawful under the APA. … Third, the states urged that DAPA was an abrogation of the President’s constitutional duty to ‘take care that the Laws be faithfully executed.’ U.S. CONST. art. II, § 3.”

The government cited various statutes giving it the power to implement DAPA. The Fifth Circuit said of these statutes:

“[They] cannot reasonably be construed as assigning “decisions of vast ‘economic and political significance,’ such as DAPA, to an agency.”

“The interpretation of those provisions that the Secretary [of DHS] advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility …. 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.”

The Fifth Circuit also ruled the states had standing. Read the entire decision here.

Put another way, Obama sought to rewrite the INA, something he admitted to, during a speech. In November 2014, responding to heckling by open borders activists, he said: “But what you are not paying attention to is the fact that I just took an action to change the law.”

Daniel Horowitz, at Conservative Review, warns that:

“Obama’s DAPA has already been halted by U.S. District Court Judge Andrew Hanen and upheld by the 5th Circuit Court of Appeals. Thus, the status quo is that the executive action is enjoined. It was the Obama Justice Department that appealed to the Supreme Court to overturn the lower court’s ruling and allow this lawlessness to continue.

“Had the court not taken up the case, the Obama administration would have lost. Now there is a chance they could win and actually implement DAPA before Obama leaves office…. They could rule on the merits of the case that Obama was acting within his discretionary authority to implement DACA or they could rule that Texas and the other 25 states lack standing to sue the administration.

He says either one would be “outrageous. He notes at least one SCOTUS decision that suggests it could now rule in favor of the president’s illegal and clearly un-constitutional amnesty: “their pathetic opinion on Arizona’s immigration law.” Six justices held that sections of Arizona’s immigration law were unconstitutional, on the reasoning, he says, that “Obama has discretionary authority to not uphold congressional statutes, thereby preempting the states from upholding them!”

He does hold out some hope, in that the plaintiffs, “while arguing against taking up this case,” asked the Supreme Court to “consider whether the Obama administration violated the “Take Care Clause” of the Constitution.”

Which, of course, he did. The Fifth Circuit, remember, concluded that “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.”

The Wall Street Journal reported Wednesday that the High Court specifically “asked the parties whether Barack Obama violated his constitutional duty to ‘take care that the laws be faithfully executed.’”

So at least some of the justices feel that he did violate that duty. Therefore, there’s hope that SCOTUS will rule within the realm of logic.

But if they should rule that the president was right; as the Fifth Circuit warned, that “would allow him to grant lawful presence and work authorization to any [or all] illegal alien[s] in the United States.”

If SCOTUS should so rule, that would demonstrate the Court was now the foe of America and would signal the unraveling of our republic. It would compel the states to move forward immediately with an Article V convention of states to amend the Constitution, to allow the states to override Supreme Court decisions. The Court has promised to rule by June.


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