A federal appeals court said President Obama’s own words claiming powers to “change the law” were part of the reason it struck down his deportation amnesty, in a ruling late Monday that reaffirmed the president must carry out laws and doesn’t have blanket powers to waive them.
The United States Court of Appeals for the Fifth Circuit has ruled that President Barack Obama violated the Constitution in order unilateral changes to immigration laws in the latest such ruling against executive overreach by the President. The President’s own words were used by the panel to rule that he intended to unilaterally change the law.
Some 26 states sued to stop the amnesty as violative of the Immigration and Nationality Act. President Obama ordered Deferred Action for Parental Arrivals, or DAPA, to grant up to 5 million illegal immigrants a proactive three-year stay of deportation and to give them work permits. To qualify, illegal immigrants had to be parents of U.S. citizens or legal permanent resident children.
Judge Jerry E. Smith, writing for himself and Judge Jennifer Walker Elrod,The 2-1 ruling by the 5th Circuit Court of Appeals quoted from Obama’s remarks in Chicago just days after his Nov. 20, 2014, announcement detailing his executive actions. In response to a heckler who was criticizing him for boosting the number of deportations, Obama said “But what you are not paying attention to is the fact that I just took an action to change the law.”
Smith added that the Justice Department seemed to stumble over the remarks: “At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes.”
Deferred action, however, is much more than nonenforcement: It would
affirmatively confer “lawful presence” and associated benefits on a class of
unlawfully present aliens. Though revocable, that change in designation
would trigger (as we have already explained) eligibility for federal benefits—for example, under title II and XVIII of the Social Security Act99—and state
benefits—for example, driver’s licenses and unemployment insurance100—that
would not otherwise be available to illegal aliens.
Writing in dissent on Monday, Judge Carolyn Dineen King rejected the arguments that the change was effectively changing federal law and dismissed Mr. Obama’s words as just the type of loose talk that comes from politicians and not a real legal argument.
I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column listing such incidents of executive over-reach. My prior testimony has discussed unilateral actions in the immigration field that do raise separation issues.
Major changes in these areas should not be the result of unilateral action in my view. The Madisonian system is designed to allow different constituencies to come to bear in the bicameral system to take factional disputes and convert them into majoritarian compromises. The result has greater legitimacy as the result of the legislative process and often constitutes a better process after being put through the difficult drafting and amendment process. During times of division, less may get done. Both sides must either compromise or seek to change the balance of power in the next election. If the country and Congress is too divided to reach a compromise, unilateral action will only deepen the questions of legitimacy and over-reach.
Here is the opinion: Texas v. United States
Isaac…..There are certain standards that define what a recession is. When you talk about 7-8 year recessions, or 15 year recessions, then you’re making up your own defination of recession.
You evidently do not accept the usual defination of recession, any more than I accept your extremely inaccurate labeling of recession years.
Tom Nash
Reagan was elected in 1980. He floated the economy using unsustainable methods for five/six years or so. Then in his second term the results of his methods started to bear fruit, impending recession. He left Bush Sr. the beginning of a recession which continued on for 7 to 8 years until job security fueled by the tech revolution kicked in. Had the tech revolution started a few years earlier Bush would have enjoyed a second term and perhaps even would have been followed by another Republican. It’s the economy. 1980 to 1988 Reaganomics, 1987/8 to 1994/5 recession, the worst since the Great Depression, and until the most recent one, worse still, and caused by a Republican President lowering taxes/revenue and spending as stupidly as could be imagined, well that has to be still fresh in your mind, I hope. This included the savings and loan debacle, junk bonds, and much more, all the result of the backass philosophy of the trickle down theory. The trickle down theory never works, never has worked, and never will work. You fuel an economy from the bottom up. You water a plant from the roots up, not the leaves down.
In any event this is all history, to be verified by simply opening some books. Reagan admitted as much on TV. The GOP has not changed. As far as being a Canadian goes, the average Canadian knows more about the US than the average American. I happen to enjoy a long life in both countries, admire the Constitution regardless of the false sanctity it inspires in some, and am not in denial regarding America’s socialism. This is, perhaps, the biggest problem with the US, the illusion that it is not a socialist country, a society first, a social system that protects individual rights, not the other way around. The objective should be to make the system work, not tear it down. It seems that the US is the only progressive country that does not understand that.
Isaac-I don’t know of any economist who would call 3.5-5.0% GDP growth a long term recession, or an economic downturn.
If the Reagan years had produced double that rate of growth, maybe you would still like to call it a recession.
Tax revenues increased by 40% during Reagan’s presidency.
This was due to solid economic growth, and the tax increases( after the initial tax cuts). Those tax increases were mostly in the last half of his administration.
You mentioned that Reagan
talked about the shortcomings of Reaganomics on TV in 1993.
I don’t recall Reagan making an appearances or giving interviews after the 1992 GOP convention….and he stumbled noticably during that speech.
Let me know if you can cite the 1993 TV appearance you said he made….I’ve searched for it, and vould not find anything.
issacbasonkavichi – what I saw Reagan admit on TV was that he cut taxes and the Democrats didn’t do the other part of the deal, cut spending.
However, there is a globalism to recessions now. So, how does Canada explain their recessions? Blame the Americans?
Tom Nash, You are discussing the US w/ a Canadian who hates the Constitution and is a socialist. You won’t get that time and effort back. But, from the brevity of your last response, I think you get that.
Tom Nash
The Reaganomics downside lasted until 94/95. The fallout from his disastrous concepts of reducing revenue and increasing spending, known as the ‘trickle down’ theory put America in economic chaos until the tech era rescued it. Reagan himself admitted this on TV in 93 when he stated that a government cannot reduce revenue by reducing taxes and increase spending to create jobs and special programs.
Reagan was the consummate Dr. Feelgood but lacked a realistic perspective. He was what the doctor ordered after the shame of Vietnam and the Civil Rights mirror. The US wanted desperately to feel good about itself and Reagan created the us and them/evil empire routine which pride starved Americans ate up in copious amounts. There was no there there. Kind of similar to what’s going on with the Republican party today, a scary disconnect with the reality of the moment, go back to when America was great and do that, even if it means going back to 1776. The Republican party and its circus is anything but the party of the 21st Century.
The paradigms that work in this increasingly global condition are there. The approach illustrated by the clowns that are presently vying for the GOP nomination is ludicrous.
So now it’s a 15 year Reagan recession.
Great start, Judge.
Now let’s go back to the tyrant Lincoln’s “Reign of Terror” and adjudicate that egregious nullification, beginning with Lincoln’s suspension of Habeas Corpus. Of course, from that point, Lincoln should have been impeached and convicted for subversion cum treason.
As we move through the unconstitutional 19th century and into the unconstitutional 20th, we end up at the unconstitutional and ineligible president who produced unconstitutional Obamacare in an antithetical (“checks and balances”) alliance with the SCOTUS that unconstitutionally assumed the role of defense counsel and subjectively altered the ACA argument from a “it’s a violation of the commerce clause” to “it’s a tax,” even as Congress protested that the ACA was NOT a tax, while subsequently and cavalierly commingling the definitions of the words “state” and “federal” in a similarly subjective, ideological and unconstitutional effort to support the very unconstitutional ACA.
You’ve got a whole lot of “ruling” to do, Judge.
forgotwhoiam, “forgotwhoiam, “…beginning with Lincoln’s suspension of Habeas Corpus.”
It still happens today, This is a complex case and I have very little hope that anyone here will do the necessary work to understand the full impact of this monumental case. ….even though this is a legal blogsite. It’s just too “far out there” for the majority.
https://jhaines6a.wordpress.com/2015/11/08/thomas-deegans-update-part-2-sunday-november-again-my-thanks-to-a-reader-who-volunteered-this-transcript-j/
Isaac- The recession in the Reagan administration lasted from mid-1981 until late 1982, for a total of 16-18 months.
It was nowhere near the “7-8 year recession” you claim.
Obama discusses his book “Dreams from My Father”:
Hildegard – Obama didn’t write Dreams from my Father.
Paul, I know. Bill Ayers wrote it.
What issac describes as “the way it is supposed to work” reminds me of what FBI profilers encounter when trying to identify serial killers. Those killers typically have behavior that went unnoticed or were overlooked as ‘typical’ childhood actions. Left unchecked they eventually evolve to the point where their behaviors can no longer be ignored.
The Presidential oath of office is not a license to “preserve, protect and defend” only those portions of the constitution they agree with. Faithfully executing the “Office of President of the United States” is not to be interpreted as having the unilateral power to run roughshod until stopped. To even remotely believe this is simply the process as designed is complete willful ignorance. Applauding this behavior on minor overreaches only encourages the President to continue going until the actions rise to a level that can no longer be ignored.
To consider opposition to ANY President usurping the powers vested in the office as “rabid and mindless” is consistent with the mindset that our rule of law is subordinate to the designs of the very people elected to honor that oath of office.
Olly writes, “This decision would fit very neatly as a textbook example of holding the rule of law above the rule of men.” I’d agree. What is problematic is that only immigration seems to excite the tender juices. What about assassinations, drone strikes, and data-mining, inter alia?
While the Nickster has proclaimed Obama is the most lawless to date, I can’t see anything he’s done that Dubya didn’t other than to extend such lawlessness to immigration to attract the Latino vote (you know, as opposed to the haves and have mores whom were Dubya’s base). Whatever gets those juices flowing I guess.
Every last one of them from Nixon forward (with the exception of Carter, perhaps) should have been censured as a warning and then convicted on impeachment for any repeated usurpation of power. Why hasn’t this happened? It reflects Congress’s collective objective is self-serving and pecuniary, and it’s use of our Constitution is selective.
If we wait for Congress to act or enact, then we will have a long wait. Congress wants to give open doors to the tired, poor, huddled masses. Muslims like the Boston Marathon bombers included.
It is troubling to me that we keep finding ourselves at this point. Again and again, our court system has proclaimed that, yes, President Obama does have to uphold the law. He is not a king to unilaterally decide the law says what he wants it to. No, that oath of office he swore was not just a suggestion.
And yet, he does not appear to learn from his hubris. Again and again he is ruled against, but he stays the course that will eventually lead to a dictatorship, with the full support of many of his followers. The court system has checked him again and again, but nothing changes. Hillary Clinton should be facing criminal charges, as far lesser offenses have led to convictions. But there is zero chance the DOJ will ever bring her to trial, and she knows it. She, and many government officials, now openly flaunt their lawlessness. The law is for peasants, apparently, not rich politicians.
I am grateful that the court system is maintaining the voice of reason for a president mad with power. It is true that there is prosecutorial discretion for individual cases. That leaves room for compassion where all the facts are analyzed. But a sweeping declaration that our law is simply not going to be enforced for 5 million people is not individual prosecutorial discretion. 5 million people breaking the law and benefitting from a support system for which they do not qualify is staggering. And yet it is merely the carrot on the stick for many million more to follow their example.
The connection between this post and the Mizzou post is liberals HATE the Constitution. They HATE the 1st Amendment and HATE the separation of powers.
That’s the way it is supposed to work. A move is made and then contested, or not, by another part of the ‘check and balance’ system. If the move is not contested it is inferred that regardless of opinions of overstepping boundaries, it was a good move or an easily defended move. If the move is contested then the issues are surfaced and separated to be reviewed by more than one element of the government.
Obama is no different than any other President. This has been going on since Jefferson. This is the system and that is how it is supposed to work. The ACA has been through it. Sometimes a President will win and sometimes lose. However, the issue would not get to a proper level of review if it were not for actions such as these.
The rest is nothing more than rabid and mindless opposition to one of the best Presidents this country has ever seen. Reagan was nothing more than a mister feel good that brought on 7/8 years of recession, Clinton caught a free ride on the tech industry wave, the midget cowboy and his cronies will be America’s shame for generations to come. Obama inherited a sewer created by the GOP and nothing but opposition and rabid lies along with it. Put things in context and Obama is doing well more than a Yeoman’s job.
For a really scary proposition, watch the GOP debates.
Mizzou: went in dumb come out dumb too. Obama did not go there. I don’t see the connection.
This is going to drive SJW mad, they use illegal aliens. 😉
If you don’t see a connection between the fascism of the Mizzou post and this one, you’re not looking. The most lawless President in my lifetime, and that includes Nixon.
Reblogged this on John Drake.
There is a well recognized discretion, almost absolute, for an enforcement or prosecuting entity to decide whether to charge a crime or prosecute a crime.
Obama may have that discretion, as it would seem to be a discretionary decision to not charge illegal aliens with immigration violations.
However, the panoply of consequent affirmative benefits and entitlements that apparently go along with that decision would seem to make his actions less of a non-action than an action forcing the rest of the executive to provide things the immigrants would not have otherwise.
A good lawyer would argue that collateral effects have no purchase on the original discretion to not prosecute.
I think Obama lost this one, because of the formalization of his actions, it was not an on-the-fly policy to simply not prosecute, it was a whole infrastructure of executive law to take care of the immigrants as well as not prosecute them.
Your job is to follow the law, not change it. If as Justice Kennedy said, you find your self unable to follow the law, do the honourable thing and “Resign”
This decision would fit very neatly as a textbook example of holding the rule of law above the rule of men.