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No-Nonsense Judge Uses Obama’s Own Words to Halt Executive Amnesty

Terresa Monroe-HamiltonWednesday, November 11, 2015

http://patriotupdate.com/no-nonsense-judge-uses-obamas-own-words-to...

Obama’s executive diktat to implement Amnesty was shot down for a second time by a no-nonsense judge. The ruling used Obama’s own words against him. The executive branch can carry out laws, but does not have tyrannical blanket authority to implement them. It was a 2 to 1 ruling by the Fifth Circuit Court of Appeals and now Obama is vowing to take the fight to the Supreme Court. Conservative Constitutionalists have a slim majority on the bench, but that is no guarantee we will prevail on this. I pray we will as our national sovereignty is at stake here. This wholesale bypass of Congress to enact Obama’s plans has to be stopped. He has another year to wreak havoc here and he doesn’t need any more precedent to use as an excuse. This judge clearly understands the separation of powers and what it entails. Obama understands it, but does not care. This time, he was ruled against. Will it stop him? Nope.

From The Washington Times:

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 2-1 ruling by the 5th Circuit Court of Appeals punctures Mr. Obama’s immigration plans and is the latest in a series of major court rulings putting limits on the president’s claims of expansive executive powers to enact his agenda without having to get congressional buy-in.

In an opinion freighted with meaning for the separation of powers battles, Judge Jerry E. Smith, writing for himself and Judge Jennifer Walker Elrod, singled out Mr. Obama’s own claim that he acted to rewrite the law because Congress wouldn’t pass the bill he wanted.

The key remark came in a speech in Chicago just days after his Nov. 20, 2014, announcement detailing his executive actions. Fed up with a heckler who was chiding him for boosting the number of deportations, Mr. Obama fired back, agreeing that he’d overseen a spike in deportations.

“But what you are not paying attention to is the fact that I just took an action to change the law,” the president said.

The two judges said the Justice Department failed to explain away Mr. Obama’s 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,” Judge Smith wrote.

Whether Mr. Obama acted within the law is the crux of the case.

Texas and 25 other states, which sued to stop the amnesty, argue Mr. Obama went beyond the boundaries set in the Immigration and Nationality Act, which sets out specific instances where, on a case-by-case basis, the Homeland Security secretary can waive penalties and allow illegal immigrants to stay, granting them work permits which then entitle them to Social Security cards, tax credits and state driver’s licenses.

A federal district court in Texas agreed with the states, halting Mr. Obama’s policy, and now an appeals court has also sided with the states.

Writing in dissent on Monday, Judge Carolyn Dineen King dismissed Mr. Obama’s claim that he changed the law, saying presidents often use imprecise language when talking about laws. She said Mr. Obama wasn’t making a legal argument in his response to the heckler.

Mr. Obama’s plan, known officially as Deferred Action for Parental Arrivals, or DAPA, was intended to grant up to 5 million illegal immigrants a proactive three-year stay of deportation and to give them work permits, allowing them to come out of the shadows and join American society — though they were still considered to be in the country illegally. To qualify, illegal immigrants had to be parents of U.S. citizens or legal permanent resident children.

The president characterized his plan as a use of prosecutorial discretion, reasoning that he was never going to deport them anyway, so they should be granted some more firm status.

But the court ruled that he not only didn’t follow the usual rules in making a major policy change, but that his claims of power to grant tentative legal status to a massive class of people went beyond the waiver powers Congress granted him in the law.

Monday’s decision is already reverberating across the presidential debate, with Hispanic-rights activists insisting Mr. Obama file an immediate appeal to the Supreme Court, and vowing to make immigration an issue in the 2016 election.

The top three Democratic candidates for president had already said they not only thought what Mr. Obama was doing was legal, but they had vowed to go beyond it and expand the amnesty to still more illegal immigrants. GOP candidates, meanwhile, have vowed to repeal Mr. Obama’s policies.

Obama is clearly operating outside the law here. 26 states are attempting to put an end to his unlawful Amnesty actions. He did indeed go far beyond the powers granted to him by law when he said that at least 5 million could stay in the country illegally. That number is more accurately around 30 million and growing daily with refugees being resettled in the US. Immigration will be an issue in the 2016 election. But I believe America overwhelmingly wants illegal immigrants deported, our borders secured, our sovereignty reinstated and the law followed. I think the Marxists and activists are going to get a very nasty surprise this time around. It’s the Democrats who want Amnesty and the top contenders for the Republican nomination who are vehemently against it. I predict the conservatives are going to win in a landslide and illegal aliens should keep their bags packed.

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Permalink Reply by kathyet on November 11, 2015 at 10:05am

November 10, 2015 9:03AM

Good Policy, Bad Law: Obama Correctly Rejected Again on Immigration Reform

By Ilya Shapiro

The U.S. Court of Appeals for the Fifth Circuit has now affirmed the injunction against President Obama’s executive actions on immigration. The opinion seems daunting at 135 pages, but only just half of that is the majority opinion, and much of that consists of technical discussion. The nub of the ruling is that the 26 plaintiff states have established a “likelihood of success” on their claim that (1) the administration both violated the Administrative Procedure Act by not going through proper rulemaking channels and (2) exceeded the authority that the relevant statutes give the executive branch in enforcing immigration law. This was not a surprise given the way oral argument went – and that the two judges in the majority were also on the panel that denied the administration an emergency stay of the injunction earlier in the year – but it’s still significant.

The court cuts through the government’s obfuscation about “prosecutorial discretion” and the like, the argument that granting temporary status to millions if people is no different than a decision to prioritze deportation of murderers over those whose only violation is being in the country without authorization: ”Deferred action, however, is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens.” (35) “Moreover, if deferred action meant only nonprosecution, it would not necessarily result in lawful presence… . Declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.” (36)

The court goes on to explain how the novel Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) goes against what Congress has legislated. “The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.” (62) Moreover,

because DAPA is not authorized by statute, the United States posits that its authority is grounded in historical practice, but that “does not, by itself, create power,” and in any event, previous deferred-action programs are not analogous to DAPA. “[M]ost … discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters,” but DAPA is not such a program. Likewise, many of the previous programs were bridges from one legal status to another, whereas DAPA awards lawful presence to persons who have never had a legal status and may never receive one. (63)

This analysis mirrors the argument we make in Cato’s brief regarding the proper application of deferred action historically, as a bridge between lawful statuses rather than a tunnel around under and around the immigration laws.

In short, while we wish Congress had acted to make some sense of our immigration regime, it hasn’t – and the president can’t rewrite the law even it makes good policy sense to do so.

Now, where do we go from here? If the government files a cert petition with the Supreme Court this or next week, the case could conceivably make it onto the docket as one of the last ones to be argued this term, meaning a decision the last week of June 2016. But the government may not do that – it waited an awfully long time to file its “emergency” motion to stay the district court’s injunction – in order to keep this immigration battle alive into the presidential election. Indeed, regardless whether the Supreme Court ultimately upholds or dissolves the injunction against President Obama’s executive action, presumptive Democratic nominee Hillary Clinton would probably rather maintain the issue as a live one – especially if, as the conventional wisdom now holds, she’ll be running against one of the Cuban-Americans running for the GOP nomination, Ted Cruz or Marco Rubio.

But that’s all political speculation. For the moment we have another defeat for the imperial executive and a victory for the separation of powers and the rule of law.

http://www.cato.org/blog/good-policy-bad-law-obama-correctly-reject...