Thursday, January 11, 2018

"Resistance" in the courts

In June 2012, President Barack Obama implemented Deferred Action for Childhood Arrivals (DACA) via executive fiat, a program designed to protect from deportation children born in the United States to non-citizens. Two years later, he expanded the program to include adult illegal immigrants who hadn't violated any laws (other than being in the U.S. illegally of course). As was his wont, Obama often asserted his perceived executive authority to create/revise laws when Congress didn't bend to his will.

In September 2017, President Donald Trump allowed DACA to expire. Leave aside for the moment that Obama likely abused his power by usurping the U.S. Congress (Y'know....the folks who actually make laws). Executive orders implemented by a President of the United States are not required to be upheld by the next administration. Whatever one thinks of the merits of the DACA law, any legislation relating to immigration should be devised by Congress (aka lawmakers).

All that said, it makes the latest court ruling on the issue all the more stupefying.

A federal judge in San Francisco (natch - ed.) on Tuesday barred the Trump administration from turning back the Obama-era DACA program, which shielded more than 700,000 people from deportation, Reuters reported.

U.S. District Judge William Alsup, an appointee of President Bill Clinton, ruled that the program must stay intact while litigation is played out.

Alsup ordered that until a final judgment is reached, the program must continue and those already approved for DACA protections and work permits must be allowed to renew them before they expire.

So lemme get this straight: A judge rules that a questionable executive order handed down by one President is required to stand during the administration of the following POTUS?

Sadly, as Jonah Goldberg writes at National Review, this is a symptom of a greater problem that has been brewing in America for some time.

The system the Founders set up depends to a huge degree on the assumption that our branches of government will be jealous guardians of their institutional prerogatives and powers. Indeed, the Founders expected that each branch of government would, from time to time, try to steal more power than afforded them by the Constitution. They assumed that the greatest bulwark against such encroachments would be the refusal of the other branches to relinquish their rights and power. It never occurred to them that the branches would willingly relinquish their responsibilities to the other branches.

Lord knows I had my problems with Steve Bannon – but, as I wrote at the time, he was absolutely right about the administrative state. Congress, the courts, and the executive branch have each in their own way acquiesced to a separate, parallel government walled off from democratic accountability. Congress has bequeathed the power to make laws and even, in some cases, to raise taxes to independent agencies. The courts, meanwhile, have been happy to let the bureaucracy combine what should be separated powers in the hands of bureaucrats. As Clarence Thomas put it, the courts have “overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure.”

But it’s not just the administrative state. No one wants to take political responsibility for policies they want. Just last week, Senator Cory Gardner was livid with Jeff Sessions for not maintaining the Obama policy of stealing power and authority from Congress. Chief Justice John Roberts upheld Obamacare because he didn’t want the Supreme Court to take the heat that would come with doing its job. When George W. Bush signed McCain-Feingold, he said he thought parts of it were unconstitutional but he was happy to pass the buck to the Supreme Court anyway. I could go on.

While many conservatives laud Trump's overhauling the federal judiciary with legal constructionists, this should not preclude the other two branches of  government from recognizing (and being bullish over) what's its purpose is in a representative republic.


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