November 12, 2019

"Those eggs richly deserve to be crushed."


And here's the NYT article on today's oral argument, by Adam Liptak, "Supreme Court Appears Ready to Let Trump End DACA Program/The justices are considering whether the Trump administration can shut down a program that shields about 700,000 young immigrants from deportation." Excerpt:

“I do not favor punishing children,” Mr. Trump said in his formal announcement of the termination. But, he added, “the program is unlawful and unconstitutional and cannot be successfully defended in court.” That decision was reflected in bare-bones memo from Elaine C. Duke, then the acting secretary of homeland security. She offered no policy reasons for the move.

Theodore B. Olson, a lawyer for the DACA recipients, said the memo allowed the administration to avoid taking political heat on the issue. “The administration did not want to own the decision,” he said.

Solicitor General Noel J. Francisco, arguing for the administration.... pointed to a second memo, issued last year by Kirstjen Nielsen, the homeland security secretary at the time. It mostly relied on the earlier rationales in Ms. Duke’s memo, but added one more, about the importance of projecting a message “that leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws against all classes and categories of aliens.” That policy justification, Mr. Francisco said, was sufficient even if the administration was mistaken in its legal rationale.

Mr. Olson disagreed. “You have to have a rational explanation,” he said. “It must make sense. It must be contemporaneous.”...

“I hear a lot of facts, sympathetic facts, that you’ve put out there, and they speak to all of us,” Justice Neil M. Gorsuch told Mr. Olson. But Justice Gorsuch said he had doubts about whether it was the role of the Supreme Court to review the administration’s decision to terminate the program.

146 comments:

wendybar said...

Trump offered the Democrats a GREAT deal, and the politically driven Democrats said no. He wanted Congress to do the jobs they were elected to do. Obama should NEVER had passed this with his pen and his phone...as it is too important of a law. The legislative branch makes laws, not the President, and not the Supreme Court. https://www.cnbc.com/2018/01/26/trump-daca-deal-is-a-dream-come-true-for-democrats-commentary.html?fbclid=IwAR3zT6BCBG0w1pe3gi3R3vK0JrjKmihrt50eggTGe18dCBNpe3RF7zi25Ms

Francisco D said...

Not being a lawyer, I am a bit confused.

Its my understanding that DACA was created by Obama Executive Order. If I am wrong, please let me know. Why is there any question about a POTUS cancelling a predecessor's EO. Isn't that a POTUS prerogative?

rhhardin said...

The leftward-turning rachet is right there in the living constitution.

Lucid-Ideas said...

EO cancels EO.

I think the Presidents keep missing something because they continue to think that they're expected to do something. We have 2 other major branches of government. Stop putting all your proverbial eggs in one basket so to speak. Give proposals to the House & Senate (which are pretty useless) but my point is if something fails TELL THE VOTERS THEY FAILED THEM. Executive Orders really are a 'wartime' thing IMO and I feel they are on shaky ground ethically if not legally.

The people elect representatives. Tell the people things would be getting done on something if their reps didn't suck so bad. I know POTUS is one person, but it actually doesn't need to be all on your shoulders.

Also, a DACA (Dill, Asparagus, Cheese, & Avocado) omelet sounds really tasty.

Jeff Brokaw said...

Some of us regular folks are interested in more important questions like “is it good policy” and “does it align with sustaining our culture” and “how much does it cost”, not just “is it legal”.

People trained in law often conflate all of these issues together.

Darrell said...

The NYT building needs to be turned into a refugee center.

Goldenpause said...

In addition to upholding the Executive Order, the Supreme Court needs to clearly instruct the lower federal courts that they must stop issuing nationwide injunctions.

Mike Sylwester said...

Ilya Somin's family immigrated from the Soviet Union to the USA when he was five years old. The family was allowed to immigrate because it was Jewish.

Jews in the Soviet Union suffered discrimination in higher education and in professions. (Asian-Americans suffer similar discrimination in higher education in the USA now.)

We can be quite sure that the Somin family told the Soviet Government that they were emigrating to Israel. However, as soon as the family reached Vienna, Austria, they declared that they really intended to emigrate to the USA.

Because the USA's Intelligence Community wanted to collect information from highly educated former Soviets, the CIA secretly paid the expenses for such Jewish families to travel to Rome and stay there for weeks and months while going through the USA's immigration processes at our Embassy in Rome.

I know all about this, because I worked in that system as a USAF Intelligence officer from 1979 to 1989.

Somin and many other Soviet Jewish immigrants have guilt complexes about why and how their families were privileged to immigrate into the USA. They were allowed to do so because their families were Jewish and highly educated.

That Soviet-Jewish immigration wave during the 1970s and 1980s was very different from all other immigration waves into the USA.

Birkel said...

The fact that the policy contradicts the law passed by Congress and signed into law by a US President doesn't matter to Somin.

Fair enough but my argument is that if you want that to be the law, convince a majority of legislators to vote for it and have a president sign it. That's the way a republican form of government works. Anything else is an abuse of the system.

J. Farmer said...

Ah yes, Ilya "Open Borders" Somin. I enjoyed Reason back when Virgin Postrel was at the helm, but it became increasingly insufferable under Nick Gillespie and Matt Welch's editorship, and I long ago ceased being a regular reader. I still follow them on Facebook and occasionally jump into the comment section to mix it up with the libertarian true faithful. The fact that all these glorious pre-Americans show up and tend to start voting for statist policies never seems to impress them. There is no place in politics for true believers. Politics by its very nature is a cynical enterprise.

mccullough said...

Somin is a sophist.

Ted Olsen is another useless Bush family lackey.

He lost a Supreme Court case as a party and an attorney. Not an easy feat.

Cut your own lawn, Ted or pay someone here legally to cut it.

Birkel said...

And when I type "the policy" I mean Obama's non-enforcement decision.

Jupiter said...

If you look at Somin's actual argument, it hinges upon the claim that just because something is against the law, that doesn't make it illegal. I know that's hard to believe, but here it is;

"Critics attack DACA on the grounds that Obama lacked legal authority to choose not to enforce the law in this case. This critique runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals."

So, DACA is just prosecutorial discretion. Wholesale.

mccullough said...

Non-enforcement is different than issuing work permits to illegals.

Let them live in the shadows.

Jupiter said...

Is it too late to deport Somin? The Soviet Union doesn't exist any more, so maybe we can't send him back there. I don't guess it would make much difference anyway, he'd keep right on publishing his obnoxious views. Only Google has the power to suppress unwanted speech.

Birkel said...

Somin's argument, as quoted by Jupiter above, would seem to be "unless the government prosecuted every crime - always - it can choose to ignore any lawbreaking it so chooses.

That way lies totalitarianism.

Rabel said...

Somin:

"For political reasons, the president did not want to give the impression that he actually favors deporting the Dreamers (which would be an extremely unpopular position). Thus, he decided to hide behind the theory that his hands are tied by legal considerations."

Or maybe, just maybe, Trump, despite the bluster, is a soft-hearted guy who doesn't want to put those people through the wringer.

Birkel said...

Somin believes deporting people would be unpopular. Somin should get out more.

Bob Loblaw said...

I don't see the problem with forcing Congress to do its job. It does little enough these days.

mccullough said...

Somin is a useless law geek. Like most libertarians, it’s just theoretical to him. They ain’t hiring illiterate Mexicans to replace him. His sinecure insulates him for now from the consequences of his utopian view of life.

Jason said...

Scratch a liberal, you'll find a fascist. Every time.

MAJMike said...

Why can't Dreamers go through the naturalization process like so many others who have applied for citizenship via legal channels? There is an existing path to legalization. Apply for legal naturalization, make the applications, do the interviews, pass the exams.

Please explain.

Rabel said...

"The grant of "lawful presence" to the immigrants covered by DACA is perhaps the most questionable part of the policy. But while this may seem like a big deal, in reality "lawful presence" does not actually legalize the presence of any otherwise illegal migrants. For the most part, it merely reiterates the executive's discretionary decision not to deport the migrants covered by the order."

Damn. I hope Ilya warmed up before he made that stretch. He coulda pulled muscle.

Michael K said...

Somin and many other Soviet Jewish immigrants have guilt complexes

I think this explains a lot of Jewish voting patterns. Not just immigrants.

Gospace said...

The DACA case is incredibly simple

DACA was created by executive order.

DACA can be rescinded by executive order

Any other decision or opinion is not based on the Constitution of the United States, but rather on the principle Orange Man Bad.

Matter of fact, that should be the entirety of the unanimous Supreme COurt Decision:

DACA was created by executive order.

DACA can be rescinded by executive order.

Michael K said...

Please explain.

They have to go home to reapply. It would take legislation to change that. Trump offered a compromise and got turned down.

Jeff Weimer said...

Somin's argument is, of course, not the point. It was the point when it was challenged earlier, and lost.

The point is, does a sitting President have the authority to reverse a previous President's EO?

Rabel said...

"Why can't Dreamers go through the naturalization process like so many others who have applied for citizenship via legal channels?"

Because they don't qualify for Permanent Resident Status which is the first step in the naturalization process.

And if you grant them that status you are shitting on the many, many people who followed the law and immigrated legally and the many, many others who are the multi-year long waiting line.

MBunge said...

"Some of us regular folks are interested in more important questions like “is it good policy” and “does it align with sustaining our culture” and “how much does it cost”, not just “is it legal”."


But the first question you have to ask is "is it legal." If you don't have the answer to that question, you can't even ask any of the others.

Mike

JaimeRoberto said...

DACA seems to be a case of the Executive Branch creating legislation. Maybe if the Dems didn't have the expectation that the President can legislate, they wouldn't get so hysterical when their guy isn't in office.

effinayright said...

Jupiter said...
If you look at Somin's actual argument, it hinges upon the claim that just because something is against the law, that doesn't make it illegal. I know that's hard to believe, but here it is;

"Critics attack DACA on the grounds that Obama lacked legal authority to choose not to enforce the law in this case. This critique runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals."

So, DACA is just prosecutorial discretion. Wholesale.
***********

Even as I write, San Francisco is taking this same stance wrt to federal, state and local law.

The results are there for all to see...

J. Farmer said...

@Michael K:

I think this explains a lot of Jewish voting patterns. Not just immigrants.

This is precisely the fault line between the sensible alt-right and the fringe alt-right. If you spend any time in alt-right spaces, you run into these people. They basically subscribe to the tenets of The Protocols of the Elders of Zion. A very strange bunch. They all seem to share a paranoid streak.

That said, I completely agree that Jewish behavior, as a group, can be understood as a consequence of certain historical forces.

Birkel said...

MBunge,
If it's not legal to pass good policy, then the problem is the law itself.

Yancey Ward said...

This is a case, so clear cut and obvious, that should be decided 9-0 in favor of the Trump Administration. DACA rests solely on an Executive Order applying a general non-enforcement of one of the provisions of a perfectly valid law enacted by Congress. As such, any succeeding President has the power to rescind that EO- there should be no question about this, but the vote on the court will be 5-4 one way or another because 4 or 5 of the justices will just make up shit in order to reach the outcome they want which is that Obama's EO can't ever be undone. If Congress tomorrow enacted a law explicitly overturning the EO, the same justices would decide that was unconstitutional.

n.n said...
This comment has been removed by the author.
n.n said...

it merely reiterates the executive's discretionary decision not to deport the migrants covered by the order

Everyone has the right... Pro-Choice is a quasi-Constitutional legal precedent -- so-called "Twilight Amendment") that has been upheld by The Supreme Court, uncontested by Congress, and exploited by diverse administrations.

steve uhr said...

I’m with Francisco D. Not sure why a president can’t undo an executive action of a prior president. But I haven’t read the legal papers so I may be missing something.

On the merits, just more cruelty from the administration. Kids who came over with their parents didn’t have any criminal intent.

Can Of Cheese for Hunter said...

We let way too many people in LEGALLY.

Enough.

Birkel said...

It's not cruel to tell non-Americans that they cannot come to America without America's permission.
The purpose of a country is to protect her citizens and all else is incidental.

D. said...

>Kids who came over with their parents didn’t have any criminal intent. <

Round up the kids and the parents and deport them

Jim at said...

On the merits, just more cruelty from the administration.

No. Cruelty is telling the people who've gone through the process legally that they're a bunch of chumps because people like you don't give a shit about the law.

Original Mike said...

"On the merits, just more cruelty from the administration."

Perhaps it's the only leverage they've got to get Congress to do their fucking job. You got a better idea, let's hear it.

wildswan said...

They say people from the other side of the border don't have any trouble assimilating to our culture on this side and so it doesn't matter how many come illegally. If that were true, it wouldn't be a problem for kids mostly raised here to go back to the other side of the border.

Mike Sylwester said...

Following up my own comment at 4:21 PM

Soviet Jews who immigrated to the USA as children -- such as Ilya Somin -- see themselves as similar to DACA aliens, but they are significantly different.

Commonly, the Soviet Jewish parents were living prosperous lives in the Soviet Union. They were educated and employed as professionals -- doctors, lawyers, professors, engineers, etc. Furthermore, they were secular -- non-observant in the Jewish religion.

Nevertheless, those Soviet Jewish parents decided to disrupt their own comfortable, prosperous lives and emigrate because they perceived that their children would be quite limited in their higher-education and professional opportunities. They perceived that the discrimination against Jews in higher education and professional careers would be much worse for their children than it had been for themselves.

-----

I translated the book of a Soviet Jewish surgeon. He was married to a biologist. They lived relatively well in the Soviet Union.

Neither of them spoke English. Neither were religious. They left everything and emigrated to the USA because they figured that their teenage son would not be able to get into medical school.

After they settled in the USA, I got to know the family quite well. I stayed in their home several times, and they stayed in my home several times.

Anyway, the son got into a good American university as a pre-med student. The son skipped classes and got bad grades -- hiding all this from his parents. Finally, he revealed to his parents that he did not want to study medicine. Instead, he wanted to study films.

Both parents were crushed. They had emigrated so that he could become a surgeon, but he wanted to spend his life writing movie reviews.

This is one example of the guilt complexes that I mentioned in my previous comment.

Many families experienced such generational discords and disappointments.

-----

The Soviet Jews who pretended to emigrate to Israel but emigrated instead to the USA feel guilty about that deception -- even if they are completely secular.

-----

Soviet Jewish immigrants like Somin feel solidarity with Guatemalan children who illegally entered the USA as children, but they are very different.

(I don't know anything about Somin's experiences; I am stereotyping him based on my general understanding of the Soviet Jewish immigration wave that brought him into the USA as a child.)

Big Mike said...

Is it wrong to remind folks that Trump offered the Democrats a deal on DACA, only to have them stage a walkout over a pretended objection to Trump describing shithole countries as shithole countries?

Gahrie said...

Under what Constitutional theory can you argue that a president cannot alter or rescind the executive order of a previous president?

dbp said...

I think a lot of the commentators are missing ILYA SOMIN's point. Obama's presidential order stood-up to court challenges, so arguing the order was illegal seems risky--the courts didn't say it was illegal then, why should they change their mind on that basis?

Trump should argue that his constitutional responsibility is to enforce the law, as passed by congress and signed by a president. His hands should not be tied by a formalization of the discretion of and by his predecessor, he should be able to exercise his own discretion and formalize it, or not, as he chooses.

Original Mike said...

"Is it wrong to remind folks that Trump offered the Democrats a deal on DACA, only to have them stage a walkout over a pretended objection to Trump describing shithole countries as shithole countries?"

They'll just stick their fingers in their ears.

Gahrie said...

On the merits, just more cruelty from the administration. Kids who came over with their parents didn’t have any criminal intent.

But their parents did. Their parents were the cruel ones, not the administration. I'd be open to a compromise on a path to citizenship (for the DACA kids only) but their demands and sense of entitlement piss me off too much.

Gahrie said...

I think a lot of the commentators are missing ILYA SOMIN's point. Obama's presidential order stood-up to court challenges, so arguing the order was illegal seems risky--the courts didn't say it was illegal then, why should they change their mind on that basis?

The legality doesn't even matter. The only issue is: Does Donald Trump have the ability to amend or rescind the executive order of an earlier president or not? If not, why not? Every president before him has had this power.

Gahrie said...

So, DACA is just prosecutorial discretion. Wholesale.

That's actually the argument that the Obama administration made.

Mike Sylwester said...
This comment has been removed by the author.
Mike Sylwester said...

Kids who came over with their parents didn’t have any criminal intent.

They are not being convicted of a crime.

Rather, they simply are being sent back to their native countries.

They get on an airplane in the USA on a Monday evening, and then they get off the airplane in the Philippines on Tuesday morning. After they get off the airplane on Tuesday morning, they are free to go and do whatever they want. They do not have a criminal record.

FullMoon said...

On the merits, just more cruelty from the administration.

No. Cruelty is telling the people who've gone through the process legally that they're a bunch of chumps because people like you don't give a shit about the law.

Recall petitions of governor circulating in California. A list of complaints.

Chinese woman asking for my signature could barely speak English. She is pissed off about illegal immigration.

I suspect she had paid her money and jumped through the hoops..

JaimeRoberto said...

Doesn't the "DA" in DACA mean Deferred Action? Doesn't that mean that eventually the exemption will end?

robother said...

Somin is arguing that justifying a EO repeal of a prior President's EO with a insufficient Constitutional argument is a reason to strike down the second EO? Doesn't this fly in the face of every SCOTUS precedent saying that Courts should uphold a law or executive action if ANY legal basis exists uphold (See, e.g., Robert's opinion on Obamacare.)

rcocean said...

Can someone explain to me how Obama could issue an issue DACA - by passing congress - and then when Trump rescinded Obama's Executive order that was unconstitutional?
We basically had the Federal Courts. IMPOSE DACA on the USA. Where is that in the Constitution?

Seriously, why do we even vote? What's the point of having a Congress when the Federal Judges decide everything?

rcocean said...

We got the usual crap reporting about how "DACA Fared Badly". As we learned before, what is said in oral arguments has ZERO to do with how the Judges vote. We all know that all 4 liberals will vote -as a bloc - to uphold DACA and that *maybe* 2-3 Conservatives are going to vote against it. What Roberts will do is anyone's guess.

Michael K said...

On the merits, just more cruelty from the administration. Kids who came over with their parents didn’t have any criminal intent.

I immediately recognized that only a leftist would say this. Do you agree with DNA testing of the kids being used by human traffickers now crossing the border? Of course not. This is all a sham argument.

Rosalyn C. said...

I think the logic of his legal argument, if I boil it down correctly, is if the number of people who are breaking the law vastly exceeds our ability to enforce the law then we should eliminate or at least ignore that law, the way we ignore pot smoking in dorms. It's the only fair thing to do, anything else is arbitrary. Might as well admit that obeying the law and entering the country legally is passé. I'm not sure if his logic applies to other areas such as traffic laws, medical licencing, food safety, etc., or just immigration and pot.

The idea as it advanced by DACA activists is that at least 800K children were illegally brought into the US (during some arbitrary dates 2007-2012?) and since there was no way to get them all out the only fair solution is to open our borders and make every resident legal. Anything else is immoral and racist. The activists claim there is "no evidence" that such a policy would provide an incentive for more people to come in illegally, as if the 11-22 million people here illegally aren't evidence enough.

rcocean said...

I've listened to Matt Welch on Bloggingheads, and enjoyed his talks on John McCain. Other than liking "Big Business" and low capital gains taxes, I've never heard Matt Welch say anything remotely conservative.

Bleach Drinkers Curing Coronavirus Together said...

The proposition that Trump even cares what's legal and what isn't is itself an egg that richly deserves to be crushed. He only cares about what benefits him, and his megalomania.

Josephbleau said...

I would say that a prosecutor who decides to not indict someone for a crime can later indict someone else for the same crime. Discretion is fine. Yet, discretion applied to indictment in no way makes it legal to commit the crime. So, Obama's EO does not change the legality of the dreamer's position, and would not prevent a future prosecutor from indicting under different policy.

rcocean said...

When is the Center-Right going to stop worshiping Federal Judges? You seem to think that because they went to elite Universities they're going to protect your $$ from the "Mob". And that just ain't so.

Big Mike said...

Under what Constitutional theory can you argue that a president cannot alter or rescind the executive order of a previous president?

@Gahrie, under the theory that “Orange Man Bad.” Duh!

Alternatively, we can go put Japanese-Americans back into concentration camps because FDR ordered it and he died without rescinding it.

LA_Bob said...

Gahrie said, "['DACA is prosecutorial discretion' is] actually the argument that the Obama administration made."

So, does the argument come down to, If the government has made a decision not to prosecute a class of cases, they should never be able to prosecute that class of cases for all time?

I wonder if there are Federal felons who'd like join that parade.

n.n said...
This comment has been removed by the author.
Bleach Drinkers Curing Coronavirus Together said...

the theory that “Orange Man Bad.” Duh!

Orange Orangutan-Man be my personal savior, I fall to my knees, worship him and absolve him all his sins - that's a much better theory. Thanks for spreading it!

n.n said...

Americans don't want judicial jam, no executive ... espresso. Congress has egg all over its face. What are our representatives to do? Congress will need to stand, not kneel, then fry up the eggs and serve them, too.

n.n said...

Ending DACA mitigates the progress of separating families and children in cages.

hombre said...

What difference does it make if the “illegal” argument is erroneous. What is created by an Obama executive order can be undone by a Trump executive order - except in an Obama Judge courtroom.

I don’t agree with Somin about the illegality argument either. That the govern fails or refuses to enforce some laws, does not render the violation of others legal. His argument smacks of Fast and Furious reasoning. Eric Holder and his thugs simply did not have the right to declare legal that which was illegal. If, as a prosecutor, I had declared that I would no longer enforce laws against burglary, I believe I would have been subject to a mandamus action to compel me to do so.

Bleach Drinkers Curing Coronavirus Together said...

"Somin and many other Soviet Jewish immigrants have guilt complexes"

I think this explains a lot of Jewish voting patterns. Not just immigrants.


Haha... guilt. Why can't they just absolve themselves of moral responsibility for everything the way Jesus lets the rest of us do?

Those silly Jews. Banning infanticide and thinking they were better for doing so than their pagan neighbors. Just guilt guilt guilt.

Winnie said...

rcocean said...
We got the usual crap reporting about how "DACA Fared Badly". As we learned before, what is said in oral arguments has ZERO to do with how the Judges vote. We all know that all 4 liberals will vote -as a bloc - to uphold DACA and that *maybe* 2-3 Conservatives are going to vote against it. What Roberts will do is anyone's guess.

11/12/19, 6:20 PM

That seems to be the pattern. Only Hagan ever seems to vote outside of the liberal block.

n.n said...

Asian-Americans suffer similar discrimination in higher education in the USA now.

Affirmative discrimination under diversity and exclusion.

AlbertAnonymous said...

I read the transcript of the oral argument. Not sure why this won’t be 9-0. Except maybe the left end of the court is crazy.

DAPA and DACA were held by the 5th circuit to be “likely unlawful” and that case was “upheld by an equally divided court” at the Supreme Court.

That alone should make the agency action lawful. The court’s saying its unlawful. If the admin doesn’t change it, some will complain they’re violating the law and becoming a dictatorship, etc etc.

Now that Trump’s admin changes it. The left claims “they can’t do that” just because some court says it might be illegal. Absurd!

It was supposed to be temporary. Obama did it with his pen. Courts said it’s probably illegal. WTF ? Delete it.

Bay Area Guy said...

Easy, easy case.

As a policy matter, sure, reasonable folks can differ on these DACA folks.

As a legal matter, they have no Constitutional right to be here, jeez. They're "illegal" aliens.

We have a generation of dumbass lawyers, judges, newspaper columnists and ordinary folks who can't discern between what is Constitutional and what may be merely a good idea.

Bleach Drinkers Curing Coronavirus Together said...

Soviet Jews who immigrated to the USA as children -- such as Ilya Somin -- see themselves as similar to DACA aliens, but they are significantly different.

How? By being professionals? Academics?

Your kind HATES professionals and academics. Such people vote progressive.

I'd think the right would love to have uneducated immigrants. The poorly educated are where Trump and the Republicans get their strongest support. And what about those who fought for us? I guess the way your party ungraciously treats those who spill their blood for America says everything any decent human being needs to know about the right-wing.

Bleach Drinkers Curing Coronavirus Together said...

We have a generation of dumbass lawyers, judges, newspaper columnists and ordinary folks who can't discern between what is Constitutional and what may be merely a good idea.

And then there's dumbass lifelong trust funders like Trump, who can't discern between what is unconstitutional and also a bad idea.

Birkel said...

Based on Somin's reasoning the next District Attorney of San Francisco is not allowed to stop people defecating in the streets.

And Los Angelinos cannot decide illegal tent cities should be removed.

And the next Mayor of NYC cannot prosecute turnstile jumpers because DeBolshevik declined.

This seems reasonable.
Deadman statutes are all the rage.

Sebastian said...

"Those eggheads richly deserve to be crushed"

FIFY.

Michael K said...

Ritmo infestation alert.

cubanbob said...

I'm astounded that this wasn't struck down by the district court in the first place. Setting aside the merits of the DACA kids, it has been a principle of law that a Congress cannot bind a future Congress nor can a President bind a future president. The Supreme Court if it has any integrity and backbone should rule 9-0 in Trump's favor and admonish Congress and the President to come to a political decision.

Churchy LaFemme: said...

Not being a lawyer, I am a bit confused.

Its my understanding that DACA was created by Obama Executive Order. If I am wrong, please let me know. Why is there any question about a POTUS cancelling a predecessor's EO. Isn't that a POTUS prerogative?


This has been coming on for a while. I remember the first time I hears about such a thing, it was about snowmobiles in national parks. The last Democrat administration (probably Clinton) had banned them from many places and the current Republican admin (probably Bush II) had overturned the ban and immediately ended up in court. I couldn't understand what possible reason an executive branch administrative rule by one admin couldn't be reversed by another.

The reason of course, as I now see, is because Republicans are bad people.

I don't know how that case turned out..

Can Of Cheese for Hunter said...
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Churchy LaFemme: said...

he first time I hears about such a thing

Sheesh! Bad fingers!

Bay Area Guy said...

Does Nancy P read this blog?

Simple package deal awaits, Nancy-Pants. -- build the wall, keep the DACA folks.

Whaddya say?

Narayanan said...

Many have pointed out that Trump offered deal on DACA etc.

I wonder if he hopes to lose at SC.

Issue will be off his plate for 2020 campaign.

Narayanan said...

Ironic if SC give him bitter victory unless Roberts gets ingenious again.

Stu Grimshaw said...

We had a kitten that would jump up on the kitchen counter all the time. Washing dishes? Kitten is there to get in the way. Making food? Kitten there to get in the way. Leaving a sandwich on the counter while you answer a phone call? Kitten there to start nibbling. Nothing we tried stopped that kitten.

Ritmo reminds me of that kitten.

Can Of Cheese for Hunter said...

The anchor-baby law - which is a loophole of a law, is never touched. Why?

Rabel said...

Listen up, dumbasses. If you start fighting with the trolls the site will go back into delayed moderation and conversations will end.

Ignore them and fuck you if you don't.

FullMoon said...

@President Toilet Paper Shoe's Perfect Phone Call

Get well soon. It works if you work it.

narciso said...

In answer to your question, judge hanen of texas saw through the subterfuge, and it was affirmed by the 5th circuit.


Ken B said...

I am not gonna follow a Somin link. He is completely in the thrall of TDS. I got tired of rolling my eyes on his Volokh posts, so I just don’t read him anymore.

Mr Wibble said...

If I am wrong, please let me know. Why is there any question about a POTUS cancelling a predecessor's EO. Isn't that a POTUS prerogative?

My understanding is that they don't deny that he can cancel the EO, but they claim that the way he did it violates the Administrative Procedures Act. It's the same thing with the citizenship question on the Census. Basically the APA requires agencies to demonstrate that their rulemaking isn't arbitrary and capricious. That's why government agencies go through the whole two years of public comments on every inane change to regulations: because it's how they show that they've done their due diligence.

So the way it works is that when a Dem administration changes a rule, the left goes along with it an any left-wing judge will allow it, but when a GOP administration wants to change the rule back, any possible excuse is used to claim that they didn't follow the APA rules and therefore they can't change it until they are in compliance, which they never will be.

mockturtle said...

Funny how the 'dreamers' we hear about in the media are exemplary young people, bright and ambitious. And yet we see so many in the local news who are thugs and criminals. The media have been in denial for years about problems caused by the influx of illegals across our border. And Epstein didn't kill himself.

Ken B said...

Birkel
Somin is the most deranged of TDS sufferers. He is even worse than Jennifer Rubin. Only Maddow is worse.

mockturtle said...

Listen up, dumbasses. If you start fighting with the trolls the site will go back into delayed moderation and conversations will end.

Ignore them and fuck you if you don't.


Well said, Rabel.

Quaestor said...

J. Farmer writes: This is precisely the fault line between the sensible alt-right and the fringe alt-right.

Alt-right? The tendency is even stronger on the left.

You need to get out more, J.

Drago said...

I see HoaxPPT is back in the house!

Just in time to hear about Denmark restricting immigration and travel from Sweden due to islamic violence that HoaxPPT claimed was never happening at all in Sweden.

What heady days those were when HoaxPPT and his pals laughed and laughed and laughed at the idea that islamists in Sweden were, oh, I don't know, blowing stuff up, attacking police and fire personnel, raping women in distressing numbers, etc!

Of course, you have to recall that HoaxPPT also claimed that lightbulbs, large agri-farms and the average square footage of midwest homes were partially responsible for homeless people in San Francisco pooping in the street.

So, there you go.

HoaxPPT has also never disavowed his passionately held belief that Brett Kavanaugh was the leader of a rape gang that ranged over the Maryland countryside raping hundreds of women.

It's almost as if HoaxPPT has some sort of....cchemical...issue.

Rabel said...

Like I said.

Ken B said...

Trump will win, but if he loses what laws are there that he could decide to selectively enforce? It would be allowed right? To selectively enforce any law he chooses.

cubanbob said...


My understanding is that they don't deny that he can cancel the EO, but they claim that the way he did it violates the Administrative Procedures Act."

Mr Wibble I don't see the connection between an executive order and an agency ruling that conforms to the Administrative Procedures Act.

Quaestor said...

It's almost as if HoaxPPT has some sort of....cchemical...issue.

His problem is acid.

Specifically deoxyribonucleic acid.

Gahrie said...

Alternatively, we can go put Japanese-Americans back into concentration camps because FDR ordered it and he died without rescinding it.

What's more the Supreme Court has said FDR acted legally in Korematsu V United States. So it's exactly like DACA.

Quaestor said...

It would be allowed right? To selectively enforce any law he chooses.

Ask 'Frisco's newly installed DA.

Gahrie said...

Trump will win, but if he loses what laws are there that he could decide to selectively enforce? It would be allowed right?

It was President Obama who decided to selectively enforce the law when he signed an executive order to stop deporting DREAMers. The courts then ruled that President Obama had the power to do this. President Trump wants to return to the original wording and meaning of the law.

narciso said...

Unrelated, there was a piece that suggested dna is one molecule.

narciso said...

One of many such molecules.

Can Of Cheese for Hunter said...

It's a happy coincidence when anyone in Clintonian orbit, dies an untimely death.
Coincidence only! You crazy conspiracy nuts.

Just like Biden's son and the media's wholesale exoneration of him. Happy coincidence

Gospace said...

narciso said...
Unrelated, there was a piece that suggested dna is one molecule.


Well, each strand is one continuous combination of the fours bases adenine, thymine, guanine and cytosine held together with sugar and phosphate groups in chemical bonds, with the two strands held together by bonds between the bases. IOW, one huge molecule, by the definition of molecule: The smallest particle of a substance that retains the chemical and physical properties of the substance and is composed of two or more atoms; a group of like or different atoms held together by chemical forces... Cut the DNA in half, and it can no longer function. Keep it together, and it can.

mockturtle said...

Nicely explained, Gospace. And correct.

narciso said...

That its not the only such molecule for transmitting genetic information

mockturtle said...

RNA is similar.

chickelit said...

President Toilet Paper Shoe's Perfect Phone Call said...Haha... guilt. Why can't they just absolve themselves of moral responsibility for everything the way Jesus lets the rest of us do?

Guilt explains George Soros's lifelong leftwing lunacy: Guilt for his Nazi collaborator past.

Yancey Ward said...

"And Epstein didn't kill himself."

Sorry, a district judge in Hawaii has issued an injunction barring you from saying that.

Aussie Pundit said...
This comment has been removed by the author.
Lurker21 said...

You know what he's really talking about, right?

Somin was born in Russia and wants to crush eggs.

And the Russian word for eggs is the same as the word for testicles.

Guy's got a lot of frustration.

stlcdr said...

One executive order can cancel another. However, as an immigrant who took the concerted effort to become a citizen, I’m torn.

They have no right to citizenship to stay;
But they had little choice In The matter (assuming a good faith argument).

There are many solutions, I would think, which both honors the work put in by those on the legal immigration path, but also doesn’t punish those who have only known the us as a home (the reality is, absent of anything else, they are here, so as long as they aren’t taking the place of an individual on the legal path to immigration, there should be minimal harm to them).

It requires work by those innocents - to put themselves on the path of legal citizenship - and more importantly congress needs to actually do something!

Browndog said...

Not being a lawyer, I am a bit confused.

Its my understanding that DACA was created by Obama Executive Order. If I am wrong, please let me know. Why is there any question about a POTUS cancelling a predecessor's EO. Isn't that a POTUS prerogative?


It was not an XO.

It was an Executive Memo issued by the Dept. of Homeland Security.

Essentially, a rule change from within the department.

Birkel said...

stlcdr,

And what if the incentives? Shall we just make it known that you, the adult, cannot move to the US and stay? But that every kid in the world can be an American in all but name?

And that every grandkid in the world, including those as yet unborn, will be a US citizen if their grandparents make it to the US with the parents?

Does that sound like a reasonable system? Sustainable?

Hey, at least under your plan people will stop coming after the Golden Goose that is America finally dies. Right?

Kevin said...

Democrats: It’s imperative Trump follow the law when it comes to spending money on the wall! If he doesn’t, we’ll sue!

Democrats: It’s imperative Trump NOT follow the law when it comes to DACA! If he doesn’t, we’ll sue!

Shorter Democrats: It’s imperative Trump do exactly what we want! If he doesn’t, we’ll sue!

Birkel said...

Browndog,
It was a rule change that runs contrary to the black letter law.

Birkel said...

People keep acting as though the APA applies.
Fine, let's play that game.
Show me where the original rule change went through the normal rule making process.

donald said...

Under what Constitutional theory can you argue that a president cannot alter or rescind the executive order of a previous president?

It is literally Orange Man Bad.

Browndog said...
This comment has been removed by the author.
Phil 314 said...

Why is it so hard for commenters on this blog to simply disagree with someone’s argument? Why must there always be the questioning of motive? And worse why must it eventually progress to a denigration of character, not just of the individual but of “the group”?

The madness of crowds. Us vs them, and “them” is always suspect if not out right evil.

Browndog said...

Browndog,
It was a rule change that runs contrary to the black letter law.


Indeed. It's a carve out, exempting a certain group from federal law.

I'm not sure why it was done this way. I'm thinking it's because an Executive Order can be immediately challenged on court, and a rule change within a bureaucracy has to go through some kind of process before it become "ripe" for a court challenge.

Just a guess.

Swede said...

Not a lawyer but this seems a no brainer.

The SC will rule that, of course, the president can cancel a prior administration's EO.

That is a prerogative of the executive.

The only scandal will be if this doesn't pass unanimously.

Browndog said...

This is a court that just ruled the lawsuit against Remmington for the Sandy Hook massacre can go forward, so anything can happen.

AllenS said...

What Browndog just said.

Birkel said...

Browndog,
I agree with the lawsuit against Remington. I think that case should get to the facts. And then the facts will prove, as they must, that the gun company cannot be shown to be the proximate cause or the cause-in-fact of the injuries.

Depending on the judge drawn (I have done no research.) a bench trial should find for the defendants.

SGT Ted said...

"Obama's presidential order stood-up to court challenges,..."

The adult version, DAPA, was struck down in 2016. DACA will fall as well, despite Obamas DoJ slow walking the challenges through the courts.

Birkel said...

Browndog,
IOW, I would prefer a very public finding on the merits that lawsuits against gun companies are deficient and cannot ever win.

narayanan said...

DACA in Immigration law = ROE on battlefield of DEMOCRACY

Here is my wisdom or wisecrack ===>>> Politics is Civil War by other means and the battlefield is LAW and legislation and administrative procedure.

Hasn't anybody caught on yet?!

stlcdr said...

Blogger Birkel said...

You completely misrepresented what I said; indeed, said no such thing.

HoodlumDoodlum said...

It's all so fucking stupid.

For purposes of keeping DACA Somin decides we can ignore the APA altogether. The cause is just so the law doesn't matter all that much--that's Justice Sotomayor's line as well, apparently! What's a pesky Constitution or idea of separation of powers when pitted against sympathetic claimants?

The very idea that one President can make a program with executive action that a subsequent President cannot undo with executive action is so ludicrous only a lawyer could make it. The fact that this is a question for the Supreme Court at all shows how very stupid our contemporary "government" has become.

If the Trump administration loses this case they should immediately enact a few dozen executive actions on all sorts of topics and put in the something like "and no future President can rescind this order." I mean, if that's the new rule let's go already.

Insanity.

MD Greene said...

The problem here isn't Trump, and it isn't even Obama.

It's Congress, the hacks who have been tossing the immigration hot potato back and forth since I was a high school student.

Since 2012, they've ceded the field to a bunch of activists who have nothing but feelings and anodyne terminology (Dreamers? really?) to support their wished-for, squishy non-conclusion conclusions.

Canada has a coherent immigration policy. So does Mexico. Now, at long last, can we not have one too?

HoodlumDoodlum said...

"This critique runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals."

Ok, fine. But the next step in the argument is something like: therefore any decision regarding non-enforcement, even including one that sets up a program that guarantees non-enforcement contrary to the law, is therefor legal. And that's preposterous! If the Trump administration said "well most people who cheat on their taxes aren't prosecuted so we decided to create a program where we promise not to prosecute tax cheats if you agree to certain terms (like donating to Right-approved causes)" I doubt Somin and company would see that as OK.

Discretion exists, but letting the Executive create programs and policies that act as legislation simply because the results are somewhat similar to what could be achieved through some massive act of discretion is unconstitutional. The Executive doesn't get to decide to ignore laws it doesn't like and doesn't get to create laws it wants to take the place of actual laws. If it does then the Constitution is all but meaningless.

HoodlumDoodlum said...

dbp said...I think a lot of the commentators are missing ILYA SOMIN's point. Obama's presidential order stood-up to court challenges, so arguing the order was illegal seems risky--the courts didn't say it was illegal then, why should they change their mind on that basis?

But those courts were wrong. Obama's executive order(s) creating the DACA program didn't comply with the APA. Part of the reason this case is before the Court now is that lower courts wouldn't let the Trump administration end the DACA program without...going through APA requirements. That's absurd!

So you end up with one of two choices: 1.) DACA as implemented (by EO) was and remains unconstitutional, violating the separation of powers. That's the correct finding, but as you point out some lower courts have managed to find otherwise 2.) DACA as implemented by EO was constitutional and can therefore be undone by an equally constitutional EO.

I think 1.) is much, much better and upholds the correct Constitutional understanding of separation of powers. If Somin actually believes executive discretion allows "legislation" like DACA the he is going to have a difficult time arguing against the vast numbers of really terrible "laws" that will be created by the next administration he dislikes. But even failing 1.) it's just nuts to find that 2.) doesn't apply because SOME executive orders can't be undone by other executive orders--that's a fundamental restructuring of government power and, in effect, rewriting the Constitution itself.

SDaly said...

The Court is going to hold that federal courts have no jurisdiction to question an executive order that does nothing more than rescind a prior executive order, whatever rationale was offered by the Trump Administration. As such the Court has no jurisdiction to offer an advisory opinion on the constitutional question over which Somin hyperventilates. There is no way that the Justices want to wade into the morass of trying to determine when invocation of prosecutorial discretion may cross the line into failure to fulfill the duty to faithfully execute the laws.

HoodlumDoodlum said...

The law is the law is the law, unless you happen to belong to favored group X, in which case this executive order effectively says we won't apply the law to you...and also the courts will decide that this executive order that effectively rewrites the law can't be rescinded or undone with a future executive order.

I mean, that's where we are here--that's what's actually under discussion. Imagine applying that logic to some topic or some group you don't find as sympathetic as the "Dreamers" and tell me, honestly, that you're OK with that as a matter of Constitutional government power. I honestly have a hard time believing anyone who cares at all about the Constitution can find that acceptable--I get that people who only are about power/getting their way/making sure "good people" are rewarded or protected and on that basis don't care about Constitutional order might make those kinds of arguments, but people like Somin MUST better.

Danno said...

I saw a headline that RBG was missing at the SCOTUS session. Oh Oh, Trump may be getting another pick.

Greg the class traitor said...

So, DACA is just prosecutorial discretion. Wholesale.

Yes, except that if that's all it is, then ending it is also "just prosecutorial discretion". Which means Trump was utterly free to do so, for any reason, or no reason at all.

Somin's gone insane, and it's made him very stupid

Greg the class traitor said...

SDaly said...
The Court is going to hold that federal courts have no jurisdiction to question an executive order that does nothing more than rescind a prior executive order, whatever rationale was offered by the Trump Administration.

That does seem likely, from what I've read so far of the transcript: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-587_886a.pdf

Amy Howe at ScotusBlog is desperate for that to not be true:
https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-challenge-to-decision-to-end-daca/

But her "reporting" reads like she attended a completely different hearing than everyone else.


I do love this line from a different article:
As CNN Supreme Court reporter Ariane de Vogue noted over the weekend, Luis Cortes, a 31-year-old graduate of the University of Idaho College of Law who came with his parents to the United States from Mexico when he was one year old, is joining Theodore Olson at the table. Cortes became something of an expert in immigration law after his father was deported to Mexico, and he was in law school when DACA came into effect and allowed him the ability to get work as a lawyer.

Got that? 31 year old "Dreamer" "kid".

Birkel said...

stlcdr,

If you wish to deny the obvious implications of your preferred policy, it is not my obligation to ignore them.

Or, to put it another way, the obvious (but allegedly) unintended consequences of a policy must be defended by its proponents.