We are running out of adjectives to describe the state of emergency in our judicial system.
The Ninth Circuit ruled last week that not only is Obama’s illegal amnesty the law of the land and immigration statutes are no longer allowed, but that Trump must surrender all private legal and political advice he received preceding his decision to terminate Obama’s “DACA” amnesty.
“Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded,” wrote Judges Kim Wardlaw and Ronald Gould, two Clinton appointees.
This is not a joke. We now have judges saying that not only can a president steal the nation’s sovereignty and grant illegal aliens affirmative benefits, but that a subsequent president must submit enough information to the courts before getting rid of the lawless program!
Imagine if a president granted Americans — not just illegal aliens — tax amnesty on the first $200,000 of their earnings. Could you envision a court forcing the new president to retain the illegal program or demand disclosure of the president’s private information? Then again, illegal aliens and their powerful lobbies rule the roost, while Americans are left paying for the tab as strangers in our own land.
During the discovery process of the lawsuit on behalf of illegal aliens, a case that should never have gotten standing before a court, U.S. District Judge William Alsup of San Francisco had ordered the U.S. Department of Homeland Security to produce emails, notes, internal memos, and other documents revealing the rationale behind the decision to end DACA. A New York federal judge, Nicholas G. Garaufis, also ordered this unprecedented release of information, but the Justice Department won temporary relief from the Second Circuit to block the discovery. However, the 2-1 decision from the Ninth Circuit upheld the radical decision of the California judge. This is yet another example of how the Left needs only one radical district judge within one extreme circuit to violate separation of powers and force Congress or the administration to continue any policies it pleases.
This decision was so extreme that even an Obama judge, Paul Watford, dissented. Watford noted how even for an administrative policy dealing with non-illegal aliens, the degree of public exposure demanded by plaintiffs would be unprecedented and would violate separation of powers. A president should never have to surrender all his legal and political advice at such an early stage in litigation over any policy:
The order sweeps far beyond materials related to the sole reason given for rescinding DACA — its supposed unlawfulness and vulnerability to legal challenge. The order requires the inclusion of all documents mentioning DACA-related issues of any sort, and is overbroad for that reason alone. But even if the order had been limited to documents analyzing the risk that DACA might be invalidated, those materials are deliberative in character and thus could not be made part of the administrative record absent a showing of bad faith or improper behavior.
Dale Wilcox, executive director of the Immigration Reform Law Institute, noted how this will create a dangerous precedent to undermine all administrative actions. “Judge Watford correctly opined that this decision will have a chilling effect on the ability of the current and future administrations to have the frank debates required to draft effective policy. This is a defeat for law-abiding American citizens on a number of levels.”
We hear a lot of sanctimonious talk from the political class about the need for “an independent judiciary,” yet we never respect the independence of the other two branches. The notion that a federal court could A) grant standing to illegals to sue for privileges; B) replace immigration law with amnesty; and C) demand unprecedented disclosure of the president’s legal advice on a policy should scare anyone who believes in the proper balance of power in our government.
The Trump administration is not helping its own case with its muddled coddling of Obama’s amnesty. Rather than categorically rejecting Obama’s amnesty as a lawless act outside statutory authority, the administration seems to be finding excuses to continue it. The administration agreed last week to allow renewal applications to be processed if applicants assert that they mailed in their applications before the October 5 deadline but they somehow got lost in the mail. Let that sink in for a minute.
It’s time for this administration to get serious about fulfilling its campaign promises. It’s also high time for Congress to put the Ninth Circuit back in its place.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.