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)

 

 

 

 

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.

 

 

Obama administration throws in towel on pressing for de facto immigration amnesty

The election of Donald Trump has prompted the Obama administration to throw in the towel and seek a delay until after the inauguration of a court case challenging Obama’s executive fiat effectively granting amnesty and benefits to millions of illegal immigrants.

A Texas judge ruled in February 2015 that Obama’s executive order exceeded his powers under the law, but the case was being appealed. The 5th Circuit Court of Appeals twice upheld the injunction and a deadlocked 4-4 Supreme Court left the injunction in place.

The Washington Times is reporting that the Justice Department and the states fighting the amnesty order, which includes Nevada and 25 other states, filed a joint request with federal Judge Andrew S. Hanen saying, “Given the change in Administration, the parties jointly submit that a brief stay of any further litigation in this Court before beginning any further proceedings would serve judicial efficiency and economy so that the parties have a better understanding of how they might choose to move forward.”

In his ruling, 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 (Deferred Action for Parents of Americans and Lawful Permanent Residents) 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.”

The judge said if the government were allowed to start issuing benefits but the executive is later overturned or legislatively countermanded there would be irreparable harm to both the states and the immigrants. 

At the time of the ruling Nevada Attorney General Adam Laxalt called the injunction a victory for the rule of law.

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.