Supreme Court is usurping the duties of Congress

Twice this week the allegedly conservative U.S. Supreme Court chose to legislate rather than litigate.

First, in the case of Bostock v. Clayton County the court found that the Civil Rights Act of 1964 barring workplace job discrimination on the basis of sex also covers homosexuals and transgendered, not just males and females, even though in 1964 no one knew what transgender was.

Now, in the Department of Homeland Security v. Regents of the University of California the court has decided Trump must state valid reasoning for withdrawing Obama’s executive orders that created DACA and DAPA — Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents. Both orders basically rewrote immigration law by allowing certain illegal immigrants to be immune from deportation as the law allowed.

In the first case Congress has had ample time to pass the so-called Equality Act that would do just what the court ruled, but it has not. Neither has Congress acted on proposals that would actually do what DACA and DAPA have done.

In the first case Justice Brett Kavanaugh succinctly wrote in dissent:

In the face of the unsuccessful legislative efforts (so far)to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.

On the immigration ruling Justice Clarence Thomas wrote in dissent:

Between 2001 and 2011, Congress considered over two dozen bills that would have granted lawful status to millions of aliens who were illegally brought to this country as children. Each of those legislative efforts failed. In the wake of this impasse, the Department of Homeland Security (DHS) under President Barack Obama took matters into its own hands. Without any purported delegation of authority from Congress and without undertaking a rule-making, DHS unilaterally created a program known as Deferred Action for Childhood Arrivals (DACA). The three-page DACA memorandum made it possible for approximately 1.7 million illegal aliens to qualify for temporary lawful presence and certain federal and state benefits. When President Donald Trump took office in 2017, his Acting Secretary of Homeland Security, acting through yet another memorandum, rescinded the DACA memorandum. To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.

Today the majority makes the mystifying determination that this rescission of DACA was unlawful. In reaching that conclusion, the majority acts as though it is engaging in the routine application of standard principles of administrative law. On the contrary, this is anything but a standard administrative law case.

Back in 2015, when the U.S. 5th Circuit Court of Appeals affirmed an injunction issued by a Texas judge in response to a lawsuit filed by 26 states, Nevada was one of the states seeking the injunction due to the costs the executive orders imposed on the states.

At the time, then-Nevada Attorney General Adam Laxalt issued a statement saying:

“After careful consideration and extensive briefing, another federal court has once again upheld the states’ injunction, illustrating that the president, like everyone else, must follow the rule of law. Our Constitution establishes a process that must be followed when changing or creating new laws, and no one, regardless of title or position, is above the Constitution. It is encouraging to see the principles of the Constitution affirmed by a third federal court ruling in this case.”

In his original injunction, Texas federal Judge Andrew Hanen stated that “the states cannot protect themselves from the costs inflicted by the Government when 4.3 million individuals are granted legal presence with the resulting ability to compel state action. The irony of this position cannot be fully appreciated unless it is contrasted with the DAPA Directive. The DAPA Directive unilaterally allows individuals removable by law to legally remain in the United States based upon a classification that is not established by any federal law. It is this very lack of law about which the States complain. The Government claims that it can act without a supporting law, but the States cannot.”

According to Pew Research data from 2016, Nevada bears the highest cost in the nation to educate the children of illegal aliens, because fully 20.2 percent of all K-12 students are the  children of illegals. According to Pew data from 2014, Nevada has the highest ratio of illegal immigrants in its workforce — 10.4 percent.

Nevada is bearing the costs without the aid or authorization of Congress. This not how laws are supposed to be made.

DACA recipients celebrate in from of Supreme Court. (AP pix)





4 comments on “Supreme Court is usurping the duties of Congress

  1. Rincon says:

    I’m not sure how permanent this resurrection of DACA is. The Court only ruled that, “Trump’s attempt to end DACA was “arbitrary and capricious” under the Administrative Procedures Act (APA)”, but left room for Trump to justify his action. As I understand it, Trump gave no real justification, as is required by the Act. If true, the Court has only put a leash on Trump’s tendency to rule as a dictator rather than as a lawful President. It seems the door is open for him to try again, only with stated justification.

    Legal arguments aside, I can’t imagine anybody being so heartless as to deport people who have never been in their supposed homeland as an adult. I have a friend who is in just such a position. He arrived with his parents as a small child, but has great difficulty getting a job because he’s an illegal – by the choice of his parents, not him. Sending him back to Mexico, which he hasn’t seen for over 30 years, is a bit much, especially considering that he speaks only broken Spanish. English is his primary language. There’s a statute of limitations on almost every crime, but apparently not the crime of having your parents immigrate illegally.

  2. Steve says:

    The only way to provide any semblance of permanency to the Obama Executive Order enabling DACA is to pass a LAW.
    Stop defending law by EO.
    EO is the very worst of the worst kind of law.

    DACA was NEVER, in any way shape or form, permanent. At best it existed only as long as Obama held the Oval Office.
    Even Clinton would have made changes to it.

    Only a law can make it a stable, lasting program.
    DACA never went far enough. All those people brought here as children need to be naturalized, backdated to the earliest official record available.

    Their parents are the criminals. Deport their parents. That is what should have happened 20+ years ago. We made our own bed, now we have to invite them to sleep in it with us.

  3. Anonymous says:

    So wait 3 1/2 years into this and we haven’t yet been saved from the brown (or is it yellow) menace in spite of gas, internment camps, Jack booted thugs, and constant propaganda?

    We’ll just have to try harder right?

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