Lanterns: Rogue Judge Joins Leftist AGs to Defend DACA


Rogue Judge Joins Leftist AGs to Defend DACA

Yet another judge has gone rogue—wielding power he doesn’t possess over immigration, power that the Constitution gives exclusively to the Legislative Branch of our government. Under the Immigration and Naturalization Act (INA), 8 U.S. Code § 1181, “…no immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such visa of the accompanying parent, and (2) presents a valid unexpired passport or other suitable travel document, or document of identity and nationality…”

That seems simple enough. Simpler still is the Constitution’s mandate in Article I, Section 8, clause 4 of the Constitution that entrusts the Legislative Branch with the duty to “establish an uniform Rule of Naturalization.” [Source: American Bar Association]

Does that give Congress total control over immigration? The ABA says:

From the late 19th century through the present day, the Supreme Court has upheld almost every federal immigration regulation against constitutional challenge, citing Congress’s plenary [total] power in this area. As Justice Kennedy wrote in the 2012 decision in Arizona v. United States:

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.… This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Naturalization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations….

The Congress has delegated to the president the authority to deny entry of “any class of aliens” he thinks would be “detrimental to the interests of the United States,” in 8 USC § 1182(f):

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

We’ve seen federal judges like Robart and Watson boldly go where no judge has gone before, exploring strange new worlds of jurisprudence: from conferring First Amendment rights on people who’ve never set foot on American soil, to asserting that the presidential power cited above could be nullified by citing Trump’s campaign statements.

That authority undeniably belongs to the president, but nowhere is the president empowered to by fiat allow thousands, even millions of illegals to remain here, in violation of the INA. Perhaps no president has declared and re-declared that fact more often than President Obama. Yet, in 2012 he smacked himself in the forehead: he had abruptly discovered that he possessed that power, after all. Obama directed his DHS secretary to issue a memo that children brought to America by illegal alien parents had the right to stay in America if they met certain qualifications. The directive was called “Deferred Action for Childhood Arrivals” (DACA).

The rationale was that prosecutors can choose not to enforce immigration laws. This is clearly absurd because the Constitution decrees in Article II, Section 3 that the president “shall take care that the laws be faithfully executed.” This is called the “Take Care Clause.”

It’s therefore indisputable that DACA was both illegal and unconstitutional. It openly excused hundreds of thousands of illegals from observing the law—that’s unabashed amnesty. Two years later, he proclaimed a new amnesty of ~4 million more illegals called “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA).

Twenty-six states, led by Texas sued the United States, alleging violation of the Take Care Clause. They sought an injunction to block the implementation of DAPA. On February 16, 2015, Federal District Judge Andrew Hanen ruled in the states’ favor, on a national basis.

After an appeal, the Fifth Circuit Court of Appeals on November 9, 2015 upheld the injunction, declaring: “The INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” On June 23, 2016 the Supreme court affirmed the judgement “by an equally divided court.”

If President Obama was the president who most often said he lacked the authority to rewrite the law—though after DACA, he admitted he’d done just that—Donald Trump was the presidential candidate who most often promised to annul his predecessor’s unconstitutional amnesties on day one.

Unfortunately, after his inauguration he failed to annul DACA, citing those “incredible kids”—notwithstanding the fact that they could be aged 35 today. His DHS continued to process DACA applicants, just as Obama’s DHS had. Newsweek reported that on June 15th “Trump’s Department of Homeland Security had announced the Obama policy will remain in effect. Enrollees ‘will continue to be eligible’ to renew work permits and no permits ‘will be terminated prior to their current expiration dates.’ DHS has said more recently no final decision on the program has been made.”

The Trump Admin. did cancel DAPA, which was of no consequence, since the courts had already blocked it. Newsweek also reported that eleven Republican states had sent a letter to Attorney General Sessions threatening if the administration does not end DACA, they will amend their successful lawsuit against DAPA to include DACA.

Trump faced the embarrassing prospect of battling in court to defend the program he’d promised to cancel. Being advised by his AG that this was almost a certain loser, he finally did the right thing and threw the ball to Congress: he would cancel DACA after a six-month delay, allowing Congress to pass legislation legalizing the DACA beneficiaries.

Apparently, the rogue attorneys general who’d challenged the unquestionably legal Trump immigration EOs lack any sense of embarrassment. Washington state’s AG Ferguson, said: “If President Trump follows through on his reported decision to cancel DACA after a six-month delay, the Washington Attorney General's Office will file suit to halt this cruel and illegal policy and defend DACA recipients. We have been working closely with legal teams around the country, and we expect to be joined by other states in this action.

“As Attorney General, I will use all the legal tools at my disposal to defend the thousands of Dreamers in Washington state.”

Never mind the cost to his state of this baseless litigation, never mind the jobs illegals take from unskilled black and Hispanic Americans.

Given the sequence of events outlined above, it’s plain to any rational person that DACA is illegal, not Trump’s cancellation of DACA. It’s unimaginable that the Supreme Court, with Gorsuch now aboard, would rule in favor of the states. Four of the justices have already ruled against DACA’s sister program and Gorsuch would surely join them in ruling against DACA.

One rogue judge has already ruled, proving by his own words that the Left is devoid of common sense, blinded by ideology. U.S. District Judge Nicholas Garaufis, in Brooklyn issued a ruling that 16 states could sue the president; it contained this bizarre statement: “Defendants offer no convincing reason why states should have standing to challenge the DACA program but not to challenge the decision to end that program.” Judge Garaufis wrote.

It should be obvious to anyone that states have the right to challenge an illegal federal action that affects them, but no state has the standing to demand that the government must continue that illegal action.

Photo credit wikimedia commons

Written by Bob Bennett

Bob Bennett, a NY-based writer, has written op-eds for the WSJ and a cancer medical journal; op-eds and travel pieces for the NY Post and a cover article for the Jewish Press. He has also appeared with his wife on Fox News, discussing Obamacare.

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