If we are turning to the courts as the last great hope to preserve our sovereignty as a nation-state, we have already lost our sovereignty and right to self-determination.
Across the internet I’m seeing some excitement from my fellow conservatives that the Supreme Court has agreed to hear arguments in the Texas case against Obama’s 2014 amnesty program, known as DAPA. But having the Supreme Court hear this case actually has little upside potential and only the potential to do damage. Moreover, the potential for one short-lived victory in the courts masks the broader long-term problem of the courts being involved in immigration policy — something they declined to do, for the most part, for the first 200 years of our history (as I’ve explained before).
Shorter Term Implications for DAPA
The overarching headline from today is that the Supreme Court has agreed to take up the lawsuit against Obama’s DAPA amnesty, Texas v. United States, with the potential to invalidate his suspension of deportations for five million illegal aliens. Reason to celebrate, right?
In reality, 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.
Hence, we are playing defense, not offense at the Supreme Court.
It would have been one thing had they taken up the case against the 2012 DACA amnesty as well. However, the 5th Circuit has already tossed out a lawsuit from ICE agents and the state of Mississippi. The D.C. Circuit Court of Appeals also denied standing to Sheriff Arpaio in his lawsuit against DACA. And in fact, the Supreme Court just rejected Arpaio’s petition for cert, thereby upholding Obama’s amnesty.
Accordingly, as it stands now, Obama can continue issuing Social Security cards and work permits to DACA recipients but not DAPA recipients. That will not change if we win at SCOTUS. Yet, we could only lose and have DAPA validated. This case will give the administration two bites at the apple to undo the 5th Circuit. 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.
While both these assertions would be outrageous, keep in mind the courts have already ruled this way. The DACA lawsuits were tossed out for lack of standing because the grievances of the states or localities were deemed “speculative.” Granted Texas Attorney General Ken Paxton has done an amazing job making a compelling case that is hard even for liberal judges to ignore. But remember, we are dealing with four justices who believe the Democratic Party’s agenda is the Constitution and five justices who believe there is a constitutional right to a gay marriage.
Moreover, on the merits of the case, DOJ will make a compelling argument that Roberts and Kennedy have already staked out their position in their pathetic opinion on Arizona’s immigration law. In that case, six of the justices signed onto an opinion invalidating three sections of Arizona’s law, even though Arizona was merely upholding congressional statutes. Their entire rationale was built upon the notion that Obama has discretionary authority to not uphold congressional statutes, thereby preempting the states from upholding them! If this sounds like an argument straight from Sodom and Gomorrah, it’s because it is. Nonetheless, these are the justices we are dealing with.
To the credit of Paxton’s office, while arguing against taking up this case in their brief, they launched a counterattack and asked the Supreme Court to consider whether the Obama administration violated the “Take Care Clause” of the Constitution. Therefore, if we do notch up a victory, it will be somewhat of a landmark case and enshrine the victory we had in the lower court. But as we’ve painfully learned over the years, liberals only view court precedent in one direction and will always grant more fundamental rights to illegal aliens in the coming years. There is no such thing as a permanent conservative victory at the Supreme Court.
Also, as we’ve noted before, the courts could never practically force Obama to positively conduct an action, in this case, to deport illegal immigrants. They could just invalidate the work permits, which is the status quo under the order of Judge Hanen. Only Congress has the ability to force Obama’s hands on deportations, but they already ceded the power of the purse.
Long Term Problem with Courts
Even if we win this case in the court, this should not serve as a false sense of hope that the courts are remediable. As I will argue in my upcoming book, we must strip the courts of their power to strike down immigration enforcement laws.
This case is somewhat of an anomaly because we happened to get hearings before some of the few good district and appellate judges in the 5th Circuit. Plus this case is such a flagrant violation of the separation of powers that even King George couldn’t enact something like this without Parliament. And yet, the one Democratic judge on the 5th Circuit panel still sided with the administration! There is no doubt as to where the four Democratic justices stand, and we could easily lose Kennedy on this case as well.
Most immigration cases in the future will be very different. Obama will only be president for another year. Thereafter, we must go on offense to reclaim our sovereignty. We will want the next president to use his executive authority to clamp down on illegal immigration. While Congress has not granted the president authority to ignore federal law, it has granted presidents robust authority to be stricter on immigration. However, the courts, if left unchecked, will toss out one action after another. They will even invalidate congressional statutes on “constitutional” grounds.
How do I know this? They are already doing it by mandating the release of criminal aliens and granting all sorts of contrived fundamental rights to those here illegally. They are creating a right to immigration for all homosexuals from third world countries (where they claim a credible fear of persecution). And most of the circuits are much worse than the 5th Circuit. They are to the left of Anthony Kennedy.
If the courts are like a football field, consider our attempt to play the immigration game as a dynamic in which we toss 10 interceptions for every touchdown we score.
If we want to reclaim our sovereignty we must do it through Congress and the next president while working to strip the courts of any power to invalidate state and federal immigration enforcement actions. In the long run, anyone who thinks the courts can be used to enforce immigration law has not been paying attention.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.