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)

 

 

 

 

Editorial: Presidents and courts should not overturn laws

The Supreme Court in June agreed to decide whether the Trump administration lawfully canceled a program created by executive fiat by President Obama in 2012 that protected immigrants brought into the country illegally as children — popularly dubbed Dreamers — from deportation and be provided work permits.

Prior to that, such persons were subject to deportation by law.

The program is called the Deferred Action for Childhood Arrivals (DACA) and is the subject of a case titled Department of Homeland Security v. Regents of University of California, et. al. This past week Nevada Attorney General Aaron Ford filed a friend of the court brief in the case on behalf of Nevada, Michigan, Wisconsin and the governors of Kansas and Montana.

“DACA recipients are members of the Nevada family, and we take care of our family,” Ford is quoted as saying in a press release announcing the filing. “By ending DACA, the Trump Administration turned its back on hundreds of thousands of young people who want nothing more than to continue living and working in the country they call home. Dreamers make America, and Nevada, great. I will continue to fight for them and for our Nevada family.”

The press release also quotes Gov. Steve Sisolak as saying, “Nevada’s 12,000 DACA recipients are hard-working members of our communities who contribute to our state every day. As Governor, I’m proud that Nevada is fighting back to defend our DREAMers against any attempts to undermine their protected status.”

In 2017 Trump announced his decision to cancel DACA, but several lower courts have blocked the move, saying the decision was arbitrary and capricious, because the administration failed to offer a sound rationale for changing course. Currently, the administration isn’t accepting new DACA applications, but continues to process renewals from Dreamers already in the program.

The attorney general’s court brief makes several compassionate arguments for why DACA should remain in force.

The brief notes that there are currently more than 669,000 DACA recipients in the United States who are able to work or attend school without fear of deportation. In Nevada, DACA recipients accounted for an estimated $261.8 million in spending power in 2015 and paid an estimated $19.9 million in state and local taxes, the brief states.

It goes on to point out that nationwide 73 percent of DACA grantees live with an American citizen spouse, child or sibling. “In Nevada, 27,600 individuals live in mixed-status households with an estimated 4,600 United States-born children of DACA recipients,” the brief relates. “Losing DACA status threatens to throw families into financial chaos, because many depend on the incomes and health insurance of the DACA recipients in their families. It also threatens to tear families apart, as native-born children of DACA recipients could be separated from their parents if removal proceedings are instituted against them.”

It also notes that residents who live in fear of deportation are less likely to report crimes or to seek proper medical care.

All true enough, but under our Constitution Congress writes laws, not the president or the courts. The Trump administration has expressed sympathy for the Dreamers, but four different bills to address immigration and the border wall failed this past year, according to The Wall Street Journal.

Rather than press litigation the governor and the attorney general should demand our congressional delegation get off the impeachment bandwagon and pass immigration reform legislation the proper way — or else uphold the law as written by Congress.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

It is all politics all the time and principles be damned

Oh, please, don’t even pretend this is about principles. It is politics, pure and simple.

Nevada’s Democratic Attorney General Aaron Ford has joined the Democratic AGs in 15 other states to sue the Trump administration over his decision to declare an emergency to fund the building of more than 200 miles of border barrier after Congress refused to do so.

“President Trump cannot sidestep our Constitution for a political ploy,” Ford was quoted as saying by the Las Vegas newspaper. “The Trump Administration’s proposed diversion of funds would waste billions of dollars that is dedicated to supporting our military and law enforcement agencies. I am proud to join this lawsuit to defend our Constitution, our state’s military bases, and Nevada’s law enforcement agencies.”

Does anyone think any of these politicians would have sued after Obama issued an executive order creating the DACA program for illegal immigrants brought into the country as children after Congress repeatedly refused to authorize it?

Of course, Republican Attorney General Adam Laxalt did join other states in suing the Obama administration over DACA. He said in a press release at the time, “Our immigration system is broken and clearly needs to be fixed. But just as clearly, the solution is not for the president to act unilaterally disregarding the U.S. Constitution and laws. The solution must be a permanent, legal result that includes, not ignores, the other branches of government and their constitutional roles. Anything less is a false hope undermining the rule of law that injures millions of people in America, including many in Nevada.”

At least Trump has the National Emergencies Act of 1976 to hang his constitutional hat on. That act by Congress — probably unconstitutionally allows Congress to shirk its duties to hold the nation’s purse strings — grants the president the power to declare emergencies to cover the expense.

There are no principles any more. It is all about politics.

A woman walks near the border fence on the ocean between Tijuana and San Diego. (AP pix)

 

Democrats refusing to break with demand for chain migration

Apparently some Democrats are balking at compromise legislation that would allow people brought into the country illegally as children because the proposal specifies that they can’t then sponsor their parents for citizenship.

With a stroke of his pen President Obama created DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents), but the courts let DACA stand and struck DAPA.

Nevada was one of the states that sued to try to stop Obama’s immigration executive orders that ignored Congress’ refusal to act on similar proposals.

In his press release announcing the Nevada’s joining the list of plaintiffs, Attorney General Adam Laxalt stated: “Our immigration system is broken and clearly needs to be fixed. But just as clearly, the solution is not for the president to act unilaterally disregarding the U.S. Constitution and laws. The solution must be a permanent, legal result that includes, not ignores, the other branches of government and their constitutional roles. Anything less is a false hope undermining the rule of law that injures millions of people in America, including many in Nevada.”

But now, when some Republicans seem willing to grant half a loaf, Democrats are demanding the full buffet — chain migration or nothing.

It’s one thing to grant to grant amnesty to those who are living here through no fault of their own, but another to grant amnesty to those who knowingly broke the nation’s immigration law.

Democrats don’t want a solution. They want an issue to campaign on.

 

 

Newspaper column: DACA rhetoric just muddies the waters

Pro-DACA gathering in Las Vegas earlier this month. (R-J pix)

The vitriol being spewed over President Trump’s suspension of Obama’s executive fiat to defer deportation of illegal immigrants brought to the United States as children is nothing more than pretentious and pointless political patronizing.

Nevada’s Democratic delegation to Washington was unmatched in its heated hyperbole.

Sen. Catherine Cortez Masto called Trump a racist and a xenophobe, firing off a missive declaring the “decision to end DACA protections for DREAMers is not guided by sound policy, but by xenophobia and myths. DREAMers who benefit from DACA know no other country other than the U.S. Denying them DACA protection unjustly rips away their future, exposes them to job loss, and threatens them with deportation from the only country they have ever known.”

For the acronym deprived, DACA stands for Deferred Action for Childhood Arrivals, the name given by Obama to an executive order to defer deportations of illegal immigrants brought to the U.S. as children. DREAMers is a derivation of the Development, Relief, and Education for Alien Minors Act, which has been pending in various forms in Congress since August of 2001 without passage.

When Congress failed to act, Obama took it on his own in June 2012 to do what Congress had not.

Even though Trump gave Congress six months to remedy his rescinding of DACA and pass the DREAM Act, Rep. Jacky Rosen declared it was wrong to invite “these young people to come out of the shadows, raise their hands, and make themselves known, the United States made a promise to those who came here as children. President Trump is now reneging on that promise …”

Rep. Ruben Kihuen, making the obligatory observation that he was once an undocumented immigrant brought here by his parents, said in an email that the decision tramples this country’s values and shatters the hopes and dreams of the 800,000 who have signed up for DACA. He called the decision “heartless and cruel.”

Rep. Dina Titus said, “Ending DACA appeals to xenophobic beliefs and goes against the founding principles of our nation” — ignoring the fact it was Obama who made a promise he had no power to make.

In a statement announcing the DACA decision, Attorney General Jeff Sessions said, “This policy was implemented unilaterally to great controversy and legal concern after Congress rejected legislative proposals to extend similar benefits on numerous occasions to this same group of illegal aliens.

“In other words, the executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”

In contrast to Nevada’s Democratic delegates, its Republicans reacted by saying it is now time for Congress to do its job.

Sen. Dean Heller issued a statement to the Reno newspaper saying, “While I remain concerned about the way in which DACA came to life, I’ve made clear that I support the program because hard working individuals who came to this country through no fault of their own as children should not be immediately shown the door.”

Heller noted that he is a cosponsor of the Bridge Act, which provides legal status for so-called DREAMers while Congress works toward a permanent solution to immigration problems.

“Just as I have in the past, I’ll continue to work with my colleagues to reform our broken immigration system and that must start with securing our borders …” Heller’s statement continued.

Rep. Mark Amodei put out a statement noting that he is a sponsor of a bill called Recognizing America’s Children Act, which would provide a way for childhood immigrants to earn legal residency.

“Since I’ve been here, I’ve called on congressional leadership to act on immigration reform. I would always rather be criticized for attempting to move this issue toward a solution, than criticized for repeated inaction,” Amodei said in a statement. “Now, Congress has six months to do the job it’s supposed to do according to the Constitution. If we’re unable to do that job, then 800,000 immigrants will be affected.”

Amodei further noted that Congress has not passed any substantive immigration reform since Ronald Reagan was president, three decades ago, adding that if any blame is to be attached to this it is rightfully Congress’.

The Democrats’ rancorous rhetoric does nothing to move toward a compromise and might well jeopardize that goal, especially if they categorically reject border security as a part of the package.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Circuit court slaps down Obama’s executive overreach on immigration

The 5th U.S. Circuit Court of Appeals has affirmed an injunction issued by a Texas judge in response to a lawsuit filed by 26 states — including Nevada — seeking to overturn Obama’s executive fiat blocking deportation of millions of illegal immigrants and granting them work permits and other benefits.

Though the administration argued Obama’s memos merely allowed prosecutorial discretion on a case-by-case basis in enforcing immigration law, the three-judge panel ruled (2-1) that this was merely a pretext and Obama has essentially rewritten the law. The ruling noted that only 5 percent out of 723,000 applicants for legal residency were denied.

The Obama administration today said it would appeal the ruling the U.S. Supreme Court.

Meanwhile, the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, is supposed to be blocked, as well as an expansion of eligibility of Deferred Action for Childhood Arrivals, or DACA, that was tacked onto the DAPA memo.

The opinion penned by Judge Jerry E. Smith said, “The INA’s (Immigration and Nationality Act) careful employment-authorization scheme ‘protect[s] against the displacement of workers in the United States,’ and a ‘primary purpose in restricting immigration is to preserve jobs for American workers.’ DAPA would dramatically increase the number of aliens eligible for work authorization, thereby undermining Congress’s stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country. DAPA would make 4.3 million otherwise removable aliens eligible for lawful presence, employment authorization, and associated benefits, and ‘we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.’”

Congress did not delegate this to Obama or his minions.

“Today, the Fifth Circuit asserted that the separation of powers remains the law of the land, and the president must follow the rule of law, just like everybody else,”Texas Attorney General Ken Paxton was quoted as saying by The Wall Street Journal. “Throughout this process, the Obama administration has aggressively disregarded the constitutional limits on executive power.”

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.”

Of course Harry Reid used the occasion to attack Republicans in general with a series of twits:

— The 5th Circuit’s decision yesterday was a political move that ignores past precedents on executive action on immigration.

— Yesterday’s decision affects millions of families who now could be torn apart. As Judge King stated in dissent, “a mistake has been made.”

— The Republican Party has neglected the lessons of the 2012 elections and have plunged over a cliff following the lead of Trump and Carson.

— I expect the Administration will swiftly appeal this decision to the Supreme Court, and I believe the Court will find the actions lawful.

 

 

 

 

Editorial: Laxalt right to join in lawsuit over Obama executive order on immigration

The primary thrust of Nevada Attorney General Adam Laxalt’s decision to join 25 other states in suing over the president’s executive orders blocking deportation of millions of illegal immigrants is strictly about the rule of law and the limited powers granted by the Constitution.

The lawsuit spearheaded by the state of Texas and filed in federal court in Brownsville states clearly in its second paragraph: “This lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution.”

In his press release announcing the state’s joining the list of plaintiffs, Laxalt also stated: “Our immigration system is broken and clearly needs to be fixed. But just as clearly, the solution is not for the president to act unilaterally disregarding the U.S. Constitution and laws. The solution must be a permanent, legal result that includes, not ignores, the other branches of government and their constitutional roles. Anything less is a false hope undermining the rule of law that injures millions of people in America, including many in Nevada.”

Nevada joined the suit the day after federal Judge Andrew Hanen heard arguments in the case. Judge Hanen repeatedly pressed the Justice Department attorney to explain by what legal authority President Obama could take such action.

Hanen is the judge who two years ago basically accused the Department of Homeland Security of aiding and abetting child smuggling when it stopped a smuggler bringing a 10-year-old El Salvadoran girl into the U.S., but then delivered the girl to her mother who had paid $8,500 to the smuggler.

The judge noted that the DHS failed to arrest the mother for instigating the conspiracy to violate our border security laws, but instead delivered the child to her — “thus successfully completing the mission of the criminal conspiracy. It did not arrest her. It did not prosecute her. It did not even initiate deportation proceedings for her. The DHS policy is a dangerous course of action. …”

The federal lawsuit joined by Laxalt points out that the DREAM Act that would have allowed children brought into this country illegally to stay was introduced in March 2009. After that Obama said on at least eight occasions he could not himself impose such amnesty.

“I am president, I am not king. I can’t do these things just by myself. …” he said. “I can’t just make the laws up by myself.”

In June 2012, Obama did just that, announcing the sweeping Deferred Action for Childhood Arrivals (DACA), even though his own Justice Department advised that immigration officials should be required “to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants …”

The acceptance rate for DACA applicants is more than 99.5 percent. Sounds automatic.
After that there was a clamor to not break up families and let the parents of those children remain in this country, too. To which Obama said on at least nine occasions, according to the lawsuit, that he did not have that power: “I’m not a king. I am the head of the executive branch of government. I’m required to follow the law.”

In November, Obama unilaterally waived deportations for the parents, candidly admitting, “I just took an action to change the law,” even though his own Justice Department advised “the proposed deferred action program for parents of DACA recipients would not be permissible.”

The lawsuit also points out the president’s action is costly to the states, because they are the ones who must pay for the health care, education and law enforcement related to those immigrants who have been given an incentive to come here and now accommodated to stay here.

Though the president has argued his actions amount to prosecutorial discretion, the suit notes he went far beyond that discretion, allowing them to be employed and benefit from Social Security and Medicaid.
All of these actions are the purview of Congress. The president is required by the Constitution to “take Care that the Laws be faithfully executed.”

We applaud the attorney general in joining in this quest to restore the rule of law.

A version of this editorial appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record.

Branco cartoon