The Supreme Court did what the NYT applied pressure on it to do, as we discussed here. I took a middle position:
The Solicitor General, seeking to skip over the intermediate appellate court, is perhaps overdramatizing the need for quick action, but [Linda] Greenhouse is overdramatizing the consequence for the Court if the supposedly big-deal case turns into nothing [because of congressional action].
I think she knows this, as she asks: "Will it look that way from inside the justices’ private conference?" She says she doesn't know, but I think it's pretty clear the answer is no. She purports to be sure that "The future of more than the Dreamers is at stake." That's the last line of the column. It's clear that she means that the future of the Court is at stake, but in what way?
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Though several components of DACA violated existing immigration law, and it was therefore an abuse of executive discretion, it was nonetheless justified as such discretion.
The fundamental question remains, how can an act of executive discretion not be changed by another act of executive discretion?
Yours is probably the best and most direct description of this case and the pending legal issues that I have seen, Althouse.
Sebastian said...
Though several components of DACA violated existing immigration law, and it was therefore an abuse of executive discretion, it was nonetheless justified as such discretion.
The typical argument for this sort of thing is resource constraints dictate prioritizing LEO efforts. In the case of DACA, the Obama guys spent more money implementing their extra legal policy rather than saving money.
And of course, only Congress can fund things. see Constitution...
Gee, Greenhouse trying to manipulate Roberts again. Said that when it worked for Sebellius, they would always do it.
I hope to see President Trump appoint several judges to the Ninth Circuit. He might begin with Professor Eugene Volokh.
The Left is much better at lawfare than the right. They'll find a lower court judge in Cal to enjoin X, then have the 9th Circuit slow walk it then affirm it, then dare Kennedy to join 5-4 decision to overturn it.
But there are bigger fish to fry. Let's see how SCOTUS does in that pending public union case. That's a big chunk of Democrat party funding on the chopping block.
Greenhouse was just hoping for a chance to be throughly dismayed and whine about it. No doubt she'll find something else to worry over.
One of the things that always bugged me intensely about the Obama administration was their SOP of using administrative action to bypass Congress (the whole "I have a pen and a phone" schtick). DACA was just the cherry on top of that whole crap sandwich. Couple that with activist judges who found Obama's executive orders just peachy, but somehow, through the magical jurisprudence of "reasons," declare unconstitutional Trump's executive orders overturning Obama's executive orders. WTF?
This makes sense. I have to believe the Court would rule in the administration’s favor; I still don’t understand the argument for why an executive order under Obama, of questionable legality itself, cannot be lawfully rescinded. If the Court went out of its way to get involved while the political parties are in the midst of hashing out a legislative solution, it would look bad all around. The Court would appear too political.
Pawlak, Volokh agrees with the unions in the pursuit of this.
Trump should igore the court order which is plainly unconstitutional.
That's the last line of the column. It's clear that she means that the future of the Court is at stake, but in what way?
Perhaps that over time as the various justices who shamelessly flout the rule of law inevitably retire or die off they will be slowly replaced with people who actually care about the Constitution. I assume that'd be bad for the general progressive agenda.
My recollection of DACA is that it expires in March. Is this correct?
If that is the case President Trump need do nothing other than let the order expire. If that is the case, the court is ordering President Trump to actively issue a new, potentially illegal, executive order extending DACA.
I can understand, though not agree with, the court ordering President Trump not to take an action.
How can a court order a president order a court to take an action? Especially if that action is illegal.
What happens if President Trump simply let's the order expire? What can the court do? "Justice Marshall has made his decision, now let him enforce it." Jackson
FWIW, I think President Trump's approach on DACA has been about the best anyone can do. All registered DACAns plus another 1mm or so not currently signed up, get to stay subject to good behavior and being self-supporting. Otherwise, out they go. I figure that about half will manage to do this for the 10 years to citizenship. These are the kind of good immigrants we need.
The others, bye-bye.
I don't understand why the Demmies turned it down. Well, I do understand, racist politics. But if they weren't a bunch of uncaring racists they would have taken President Trump's deal.
John Henry
I would like to see Trump just announce that the EO was unconstitutional and start deporting them but that would be too much drama I suppose.
Alternative Headline - "Supreme Court fails to protect federal judiciary from itself."
Someday the Congress is going to have to repeal and reissue the Judiciary Act and put a stop to the politicization of the federal courts.
When one political party adopt a "By Any Means Necessary" and then appoints judges who believe the same way, the federal judiciary cannot be given as much power as it was given and has assumed in the past.
One would assume that the Chief Justice could see this coming, but I guess not.
And if the inverse happened- if trump refused to listen to the courts- there would be hell to pay. Not sure how the SC punts on something which seems to be the most clear (to a layman) infringement on a Presidents powers and a true constitutional crisis. Or will the courts now be applying stare decisis to the other branches of govt now
IANAL. From my non-expert POV, the law requires that illegal immigrants be deported. When a single, low-level judge prevents the President from enforcing the law, something is terribly wrong.
I hope that at some point in my lifetime a President tells the courts to pound sand.
Snubs!
I cannot imagine a progressive democratic media person (the media) using the word "Snubs!" at any point during the reign of St. Obama.
I'm not so sure Trump really would prefer to have this decision dropped in his lap sooner rather than later.
I think his negotiation position vis-a-vis congress is much stronger before he has to implement his decision.
Right now, it's the Democrat's constituency that is being roiled.
Meanwhile Trump can turn up the heat by call out the Democrat's continuing legislative inaction on behalf of DACA.
A case of: "Let me at him. Let me at him.?"
Here's a simple rule of thumb on immigration:
Obama's Executive Orders are Constitutionally mandated.
Trump's Executive Orders are Unconstitutional.
"Meanwhile Trump can turn up the heat by call out the Democrat's continuing legislative inaction on behalf of DACA."
Oh, I agree. He has them by the short hairs and any move toward turning it over to ICE after March 5 would create panic. His response could be, "Well, I offered a deal and you didn't want it."
Interesting game theory case,
The fundamental question remains, how can an act of executive discretion not be changed by another act of executive discretion?
And more importantly, what gives the judicial system the right or power to interfere in a purely executive branch matter?
Didn't another lower court, while Obama was in office, rule that DACA was illegal? I would think in the face of two opposing decisions that POTUS gets to choose which one he want's to enforce while the case works its way up to SCOTUS.
WisRich: the SCt ruled on DAPA, not DACA. (Gotta keep our acronyms straight!) (Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.)
https://www.nytimes.com/2016/06/24/us/supreme-court-immigration-obama-dapa.html
There is no urgency about this topic from Trump's point of view, and certainly not from the Supreme Court's point of view. Good heavens, they might have to DO something! It is much better to let the political process play out.
The Dems, meanwhile, are stuck with this as it becomes more and more clear that the people who care most about the subject can't vote legally because they aren't citizens. The Illinois Democratic Party is awash to the gunwales with crocodile tears on this topic. Sen. Dick Durbin, who is barred from taking communion by his church for his position on abortion, gets weepy EVERY SINGLE TIME this is mentioned.
I laugh.
As I remember, part of the deal with Trump's rescission was that the pending law suit to invalidate the action would be dropped. Seems might be a good time for it to reappear. Wonder what happens if there is a court ruling that the original DACA action was unconstitutional. The current injunction, as I understand them, is based on the finding that the President did not have a legitimate justification for the rescission. Which is to say he could not independently make the decision that the action was unconstitutional.
Murph said...
WisRich: the SCt ruled on DAPA, not DACA. (Gotta keep our acronyms straight!) (Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.)
Thanks for the clarification.
So:
Administrative action for Parents(DAPA) - Illegal.
Administrative action for the kids (DACA) - Not only Legal but a constitutional right!
You gotta love our court system: It's for the kids!
In the classic words of Louella Parsons, this is a nothingbuger.
Why should anyone obey ANY law? We do have immigration laws but they have been purposely ignored and will bring the breakdown of the rest of the civil society law.
So the 9th court has a chance to hang itself.
The fundamentals of this case are so obvious not even the 9th should screw it up.
If they do then it should be used as an excuse to break it up.
Put the current 9th circuit in charge of Alaska and move it to Fairbanks.
Divide the rest between a new 10th and 11th circuit.
"Amadeus 48 said...
The Illinois Democratic Party is awash to the gunwales with crocodile tears on this topic. Sen. Dick Durbin, who is barred from taking communion by his church for his position on abortion, gets weepy EVERY SINGLE TIME this is mentioned.
I laugh."
Dick Durbin would heat his home with Dreamers if it meant he would gte re-elected.
PROPOSED CONSTITUTIONAL AMENDMENTS
CONCERNING LIMITING JUDICIAL ACTIONS: A. Any judicial decision limiting or overturning an act of the Congress as executed by the President is limited to the judicial district or circuit in which it was made until confirmed by The Congress or The Supreme Court Of The United States; B. Any decision of The Supreme Court Of The United States may be reversed or nullified by a two-thirds vote of the House Of Representatives; C. All decisions of the courts of the United States shall use the intent of the authors of Constitution, its amendments and the Laws of the United States as the basic authority and source for such actions. (These provisions return constitutional power to the People and their democratically elected representatives as taken from them by individual or small groups of unelected judges.)
Concerning Immigration & Citizenship: Persons who illegally enter the United States or illegally remain there after a legal entry or who have falsely applied for citizenship may be immediately removed from the Nation or confined until removal upon only evidence of of those illegal actions. The children of such persons are not citizens of the United States by reason of their birth in our nation but have and maintain the citizenship held by their parent(s). (This article protects the value of lawful citizenship in the USA and is consistent with many nation's laws.)
Chuck said...
"Yours is probably the best and most direct description of this case and the pending legal issues that I have seen, Althouse."
Praise from Chuckles is high praise indeed!
i think current- and future presidents- will now start figuring out what exec actions they can take, which some judges will make difficult to change
This may be enough to get the 9th circuit broken up.
I detect the mind of Kellyann Conway behind Trump's most excellent DACA posturing for the last two months. It has thrown the blame for the DACA innocents' plight onto Schumer and Pelossi.
This delay in the SCOTUS ruling against the fake law being imposed by Obama's pet Justices just keeps this issue where it has been until after the first Tuesday in November.
The CIA's assassin teams might have to switch over and hit Kellyann if they can't get to Trump.
I find it amazing that any lower court didn't toss the challenge to the president's prerogative to the curb. That the Supreme Court kicked the can down the road is also equally offensive. Whatever one might think of the merits of DACA the issue isn't DACA but rather the general principle that a past parliament can't bind a future parliament and its corollary that the sovereign is bound by the acts of a previous sovereign.
"I hope to see President Trump appoint several judges to the Ninth Circuit. He might begin with Professor Eugene Volokh."
Once I would have agreed with you. Sadly, he's become (or revealed himself to be) a NeverTrumper and complete open borders lunatic.
It takes four votes to grant certiorari. Not granting cert here means that there weren't 4 votes. So the best assumptions are that Kennedy and Roberts voted against cert.
Kennedy seems to pay tribute to Ted Kennedy for "borking" Bork and allowing Anthony Kennedy to join the Supreme Court. I think he is trying to outlast Trump.
Roberts seems to have something in his past for which he is being blackmailed (Google the discussions about Obamacare being a "tax" and/or see here).
Immigration is about to boil over in Italy and it won't be the last.
Berlusconi’s coalition partners are the hard-Right League or ‘Lega’ (previously the breakaway Northern League) and the even-more-Right-wing neo-fascist Brothers of Italy. Despite the name, they are led by a woman and their candidates include Rachele Mussolini, granddaughter of the wartime dictator.
As for the Left, things are looking bleak. Italy’s centre-Left Democratic Party (PD) is the only one sharing the vision of ever-closer European union peddled by France’s Emmanuel Macron and Germany’s Angela Merkel. But Italians want less Europe, not more.
There has to be a very, very good justification for jumping over the inferior courts in the manner Trump wanted- mostly an argument that time was of the essence. This argument couldn't be made, and SCOTUS made the right decision here. However, the case will eventually reach SCOTUS since the DC Circuit will eventually rule that Trump can't rescind an executive order- that is just the politics of it. Such a ruling is ridiculous, but there it is. With the current SCOTUS, Trump will win the case. The case will likely be heard in 2019.
Immigration is about to boil over in Italy and it won't be the last.
So, it's true. France got the oil and Italy got "immigration reform", specifically CAIR that was forced by Obama's global wars and covered up by the UN, NGOs, reformed/liberal religious organizations, and diverse (i.e. racist) anti-native coalitions.
How about when the lower courts decide in a blatantly political fashion and make an ass of the law?
So, a lower court can disenfranchise American citizens and hold the country captive in order to facilitate immigration reform (e.g. social justice-induced refugee crises and cover-up, Planned Parenthood and NOW compensation through illegal immigration) in lieu of emigration reform.
Trump : "My hands are tied , folks"
he can't do much on immigration, but he has not broken, not broken his promises with this base.
nice stratagery for inaction by averring rule of law.
ART OF THE DEAL.
I can accept the SCOTUS decision today. Give the full circuit a chance to review and do the right thing.
Eh. We have a review process for a reason. No harm in it, well, no more harm in it. A few more months won't make a real difference.
(On the statistical level, at least).
As predicted.
Judicial restraint, harumph! Better late than never, I suppose.
I hope to see President Trump appoint several judges to the Ninth Circuit.
Or better yet, lead the charge on splitting it up.
There has to be a very, very good justification for jumping over the inferior courts in the manner Trump wanted- mostly an argument that time was of the essence
Now he has done all he can.
The ball is in the Democrats' court.
Game theory, I don't think that Nancy and Chuck are up to it.
>>>>I don't think that Nancy and Chuck are up to it.
Game theory >>>> do they even have to do anything? DACA will NOT now expire in March - can go on forever?!
maybe they have not figured that out yet and may stumble and dig a hole?
Once I would have agreed with you. Sadly, he's become (or revealed himself to be) a NeverTrumper and complete open borders lunatic.
Volokh is a hard core libertarian. How you could claim to be a libertarian and against unrestrained immigration is beyond me.
On the plus side, if the courts do decide that Obama's executive orders are binding upon Trump (and all following presidents), Trump can just write an order now that says something like:
"President Donald J. Trump is the last president allowed the power and privilege of the executive order, and no executive, congressional, or judicial action may alter this order."
...and then we won't have to deal with that stuff anymore, since that's clearly binding on everyone. Right?
Let the time limit run out, and then start deporting the parents of the ADULT Dreamers. They were criminals, they aren't covered. But now the Dreamers will be going ballistic to get a deal, ANY deal to keep Madre y Padre here. And while they will excoriate Trump (like they aren't already) their moral position is, even more important then their legal position, is weak. And Trump supporters already don't care about their opinions about Trump.
Because people don't like illegal immigrants very much. They are ungrateful line cutters and who likes a line cutter? So their parents have no 'poowa widdle kiddy' protection. Not when you show that Dreamer Miguel is 30 years old and has a job and education. Fuck him. If he wants to stay with Madre, he is free to do so. Life if full of tough choices.
It is when that first planeload of such people leave that things start getting real.
Freder Frederson said...
"Volokh is a hard core libertarian. How you could claim to be a libertarian and against unrestrained immigration is beyond me."
There's a lot that is beyond you, Freder, but we have to start somewhere, so let me clear this point up for you. My citizenship is a form of property. I inherited it from my parents, and it confers certain rights, immunities and benefits. If I could sell it, it would be worth a great deal of money. I cannot sell it, but that does not mean that it has no value. And it should be clear, even to you, that a large part of that value consists of the right to live and work in the US. Therefore, if that right is offered to everyone on Earth, my property loses it's value. And Libertarians used to understand that no liberty is possible when property is not respected. How they lost sight of that fact in this particular case is a puzzle for another day.
Why is it that liberals don't really care about the Constitution and will do what it take to advance the liberal cause and Conservatives will always give way? I think the only way to have a conservative court is to have all 9 justices listed as conservatives because there will be a couple of squishes and a couple that say they're conservative but vote liberal and then you might have a reliable 5-4 conservative court.
Seems to me that this is a case where Trump could score some points against an overweening judiciary. The court says that the Executive cannot overturn an Executive Order and return to the status quo ante? This sounds to me like a strong case can be made that this is a matter strictly within the purview of the Executive and the Judiciary has no role to play. I would love to see Trump stir up a little Constitutional crisis over this. The Judiciary has gotten far too big for its britches. They are not the philosopher kings that they would like to be.
The so-called "DACA protection" was an Obama Executive Order. As President, Trump is vested with sole executive authority to rescind any previous Executive Order. The court has no jurisdiction or authority in this matter. Trump should rescind the order. If someone wants to file suit on our immigration law, so be it.
Every DACA beneficiary who hasn't yet learned the language of the daqueños home country in all these years of 'deferred action' should be first in line for deportation. The USA doesn't already lack for lazy tax eaters.
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