Will SCOTUS rubber-stamp amnesty?

· April 19, 2016  
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This Sept. 16, 2015, photo shows a part of the border fence near Naco, Arizona. Astrid Galvan | AP Photo

When contrasting the power of a king with that of a president, Alexander Hamilton wrote in Federalist #69 that “[T]he one [a president] can confer no privileges whatever; the other [a king] can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies.”

Last November, Obama did just that.  He conferred positive privileges; namely, Social Security cards and work permits on those who entered the country illegally, contrary to laws passed by Congress, which holds plenary power over immigration.

Irrespective of one’s views on the underlying policy, if a justice were to adhere to some semblance of legal jurisprudence, Obama’s action would be considered the most unconstitutional act to ever come before the court.  After all, sovereignty is something even King George could not tinker with unless he had the support of parliament.  Yet, after today’s oral arguments before the Supreme Court, we are left hanging by a thread, praying that Chief Justice John Roberts won’t serve as the fifth vote to rubber stamp Obama’s amnesty.

Here are five key observations from the oral arguments:

  • The Insufferable Four Liberals: Until oral arguments began, there was a shred of doubt in my mind that maybe – just maybe this one time – even the four leftists would understand that, although they agree with the political outcome of executive amnesty, it is incontrovertibly illegal.  Unfortunately, all four of them were very clear that they would uphold the administration’s action.  What happened to the statutes?  Justice Sotomayor gives us a political argument instead: “Those nearly 11 million unauthorized aliens are here in the shadows.   The answer is, if Congress really wanted not to have an economic impact, it would … allot the amount of money necessary to deport them, but it hasn’t.”Taking that argument to its logical conclusion, this means the four liberals believe that if Congress doesn’t allocate enough money for Social Security when it goes bankrupt, the president can unilaterally direct the Treasury to create private accounts, a long-held conservative policy priority.  That we have four liberals on the court (and many more on the lower courts) who believe that whatever benefits the Democrats politically is legal and whatever hurts their political cause is illegal should serve as the final wakeup call to strip the courts of their power.Also, if Sotomayor wants to make legislative arguments instead of legal arguments, she should bone up on the budget.  ICE’s budget for removals has increased from $2.6 billion in 2011 to $3.4 billion last year, yet deportations have plummeted.

    And by the way, given their presence at the Supreme Court building today, illegal aliens are anything but “in the shadows.”  Justice Sotomayor must not have a window in her office.

  • Treating an illegal edict like legislation: When the courts engage in judicial review of a statute (assuming one believes they have the power to do so), they have definitive text to examine.  The challenge for our side in going after illegal executive action is that there is no legislation to examine.  That is the point.  Thus, the administration is able to do one thing, but draft a memorandum specifically tailored for the courts to review, even if that memo fails to reflect the reality. Solicitor General Don Verrilli and the four liberal justices, along with Justice Roberts, continuously referenced specific language from the carefully crafted memo, as if it reflected reality.  Verrilli kept referring to non-criminal aliens as “low priority,” in order to pitch the act as a prudent use of discretion.  Ruth Bader Ginsburg declared that “inevitably priorities have to be set.”  In reality, the amnestied aliens are completely exempt from enforcement and are granted affirmative benefits (some could receive up to $35,000 in tax handouts).  And as I’ve noted before, far from using discretion to focus on criminal aliens, deportation of criminal aliens dropped from 150,000 to just 63,000 under Obama’s watch.  Maybe the liberal justices would like to chat with the parents of Sarah Root.
  • “Standing” for Illegal Aliens but not for Texas:  One thing that stuck out to me is that while illegal aliens were given standing to sue for affirmative rights, Obama’s Solicitor General, as well as the four liberal justices, seemed to be skeptical that Texas even has standing to sue the administration.  Ponder this thought for a moment: these same liberals believe states are barred from defining marriage as a marriage, even though the institution was completely given over to the states since our Founding.  Yet, in their estimation, a president can countermand congressional statutes on immigration to the detriment of the states, and there is nothing they can do about it.  Would the states have ever joined the federal union under these circumstances?
  • Justice Alito Caught Obama admin in lie about driver’s licenses:  As we pointed out earlier this month, the administration is arguing that Texas has no standing because there is no injury resulting from executive amnesty.  They claim Texas does not have to issue driver’s licenses.  But in a recent Arizona case, the Obama administration joined a lawsuit against the state, forcing them to issue driver’s licenses.  When Alito asked Verrilli why Texas does not have standing if they must issue licenses, he said, “I disagree with that,” and never answered the question.
  • Will Roberts do a Rewrite?  It appears the four other justices were committed to upholding the 5th Circuits injunction on the executive amnesty.  But there was one rub.  Chief Justice Roberts seemed to open the door for a rewrite of the policy that would, in his mind, make it harmonious with federal law. He seemed to get caught up in the written text of Obama’s edict and the fact that it explicitly deems the illegals “lawfully present.”  He later asked Erin Murphy, the attorney for the House GOP, whether striking those words would be a viable solution to fixing the executive action.  Normally, I wouldn’t read too much into these questions, but given Robert’s penchant for enacting judicial fixes in order to uphold the status quo, I wouldn’t be surprised if he latches onto this as a solution.  Hey, if he could rewrite a written statute from the bench, he could certainly rewrite an unspoken executive action!
  • Outcome: While many will cheer today’s news and predict a four-four split, thereby upholding the lower courts and the rule of law, this is really a sad state of our system of governance.  That something this unlawful and radical is only halted by the luck of putting the case before one of the best district judges and the best circuit court portends irremediable problems for the courts down the road. There are already a majority of judges on most other circuits that believe in the same judicial ethos as the four liberal Supreme Court Justices.  And when it comes to Anthony Kennedy or John Roberts, as we’ve painfully learned from Obamacare, marriage, disparate impact, Arizona, and a host of other cases, we are hanging on by a thread.

For those of us who are true constitutionalists, we don’t believe the courts should be the final arbiter of all political questions.  But now that five justices believe they have the power to strike down marriage – the building block of all civilization – how can it be that at least four of them refuse to strike down the most profound lawless action of a president?


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.