Implementing an amnesty for illegal aliens through the White House was one of the more blatant usurpations of legislative authority by Obama. And was followed by a fundamental lack of consequences.
In one of the more insane Roberts decisions, the liberal chief justice claimed that former Attorney General Sessions hadn’t followed proper procedure in declaring that DACA was unconstitutional and therefore the Obama amnesty had to stand. Somehow the Trump administration was not allowed to toss out a previous administration’s “selective enforcement” priority without following proper procedures. And Roberts decided he could even order the Trump administration to accept new illegal aliens as applicants as part of his APA power grab.
The APA came for DACA with Judge Andrew Hanen who was one of Bush’s better appointments. Hanen is a border hawk and he ruled that DACA was itself in violation of APA. That case has been bouncing around and the Fifth Circuit Court of Appeals has split the difference, asking Hanen to review Biden’s tinkering with DACA, allowing DACA to keep running, but barring new illegal aliens from joining the amnesty party.
Should DACA make its way to the Supreme Court, it’s anyone’s guess what will happen. RBG has been replaced by ACB. Breyer has been replaced by Jackson, but the votes there will be identical. Roberts will still fight to save DACA. Will Amy Coney Barrett do the right thing?
We know her position on abortion and it’s no surprise. I suspect she’s weaker on crime and illegal migration. We may soon find out if that’s the case.
Either way, APA slap fights are themselves bad precedents with little constitutional basis. Administrations should have their power constrained in constitutional ways. There are limitations on the executive branch. Those should be honored. DACA violated those. Sessions was right to toss it out as unconstitutional. Roberts’ APA power grab was equally unconstitutional. Conservative judges are embracing APA tactics, but like executive orders, they’re a dead end that creates an even more unconstitutional system. And wrecking a constitutional system ultimately plays into the hands of the Left.