President Donald Trump is quietly turning a stinging defeat at the Supreme Court over an illegal amnesty for hundreds of thousands of young illegal aliens into what could end up being a victory for the Constitution and the rule of law.
The Supreme Court, of course, has no authority to tell the president of the United States that he cannot rescind an illegal executive amnesty ordered by his predecessor in the same manner it was instituted.
Normally, presidents of both parties rush to raise their arms in surrender whenever the black-robed life-tenured politicians on the high court demand it.
The president appears to be taking a stand against rampant judicial supremacism by drawing inspiration from President Andrew Jackson, whose portrait proudly hangs in the Oval Office.
After the chief justice of the day overreached in Jackson’s opinion, the 7th president allegedly uttered the following immortal words: “John Marshall has made his decision, now let him enforce it.”
Now the Trump administration is taking heat over its failure to immediately resume processing of illegal aliens under the Deferred Action for Childhood Arrivals (DACA) program after the Supreme Court, headed by the ever-weaselly John Roberts, found in a particularly bizarre ruling June 18 that it failed to properly rescind the Obama-era program that was created with the mere stroke of a pen.
Maryland-based U.S. District Judge Paul Grimm, an Obama appointee, criticized the Trump administration July 24 for not yet complying with the high court’s order, including not yet updating informational pages on government websites.
“That is a problem,” Grimm said. “As for the inaccuracy on the website, that has to change and that should be able to change very quickly. … It creates a feeling and a belief that the agency is disregarding binding decisions by appellate and the Supreme Court.”
U.S. Department of Justice lawyer Stephen Pezzi told Grimm that new DACA applications were being “held” and “placed into a bucket” while DHS officials figured out what to do with the program.
“It is a distinction without a difference to say that this application has not been denied, it has been received and it has been put in a bucket,” the judge said.
The Trump administration is sending out mixed messages and “that puts applicants in doubt,” whined John Freedman, attorney for the DACA recipients.
“It puts immigration lawyers in doubt. Nobody knows what’s going on,” Freedman said. “It reinforces impressions that … the administration, the defendants are not complying with the rule of law.”
But Freedman has it backwards.
The federal judiciary, not President Trump, is violating the law, commentator Daniel Horowitz argues.
“The courts are defying the law, the Constitution, and 130 years of their own settled case law that illegal aliens have no standing to sue for a right to remain in the country against the will of the political branches of government. It is they who are defying the law. Moreover, as Hamilton noted in Federalist #78, the courts ‘must ultimately depend upon the aid of the executive arm for the efficacy of its judgments.’ Thus, Trump declining to actively use his powers to violate immigration laws duly passed by Congress is not defying the courts; it’s following the law being defied by the judiciary.”
“You see,” Horowitz writes, “this case is different from almost every case that comes before the courts.”
“Typically, the courts will invent a contrived right and demand that the other branches take an action they need not take. In this case, the court is jumping two steps by demanding Trump not only refrain from deporting illegal aliens, but affirmatively use the tools of government to grant resident documents to people whom our law explicitly prohibits from having them. [italics original]
“If separation of powers means anything at all and we are to preserve a country of checks and balances, Trump must not issue these visas.”
Horowitz has it exactly right: not processing DACA applications has the effect of upholding the rule of law, as opposed to upholding the perverse version of the rule of law proffered by Chief Justice John Roberts and the other four liberals on the Supreme Court.
Trump’s patriotic stalling buys him time to decide what to do about the much-mythologized 700,000 to 800,000 individuals eligible under the DACA program.
These people are a subset of about 4 million “DREAMers,” many of whom failed to apply for relief under DACA, but who could qualify under a further amnesty were one to be granted. Law-abiding Americans, including Trump’s political base, are adamantly opposed to the lawless program and amnesties in general.
The current dispute between the open-borders left and Trump grows out of the Supreme Court’s 5-4 ruling earlier this summer in Department of Homeland Security (DHS) v. Regents of the University of California that the administration did not follow every jot and tittle of the Administrative Procedure Act (APA), when it rescinded the program that temporarily prevented young people who came to the United States illegally from being deported.
The APA requires the government to fully explain the reasons for certain decisions, though few before the infamous ruling believed it applied to Barack Obama’s kingly fiats.
“The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so,” wrote Chief Justice Roberts, who has been deservedly ridiculed by conservatives for this and a series of grotesquely absurd recent rulings.
“The appropriate recourse is therefore to remand to DHS, so that it may consider the problem anew.”
Like so many Supreme Court decisions nowadays, the court opinion is a pseudo-legal essay brimming with lawyerly codswallop, an after-the-fact rationalization written to justify a preordained result. The goal was not to do justice but to frustrate Donald Trump.
The court, under pressure from the illegal-alien left, invented an elaborate excuse to keep the program in place, reasoning in effect that because the decision to rescind DACA affects many people and would disrupt the lives that these illegal aliens have unlawfully been living in the U.S., the cancelation of the program needed to be stopped.
Conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh wisely dissented from the main finding in the majority opinion.
“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote.
Thomas accused the members of the court’s majority of creating their own extra-legal solution to the DACA problem out of whole cloth.
“The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government.”
If President Trump continues to work to counteract those ripple effects, America will be better off.
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Photo credit: Pax Ahimsa Gethen