Analysis by Kay B. Day
It is the height of irony when a court case won by the global warmist movement upends another progressive initiative. Such is the case with a ruling on the Department of Homeland Security’s program, Deferred Action for Parental Accountability (DAPA).
How the two rulings converge is an interesting tale, but first you have to get the basics.
DACA, DAPA AND FEDERAL OVERREACH
What media, including this writer, refer to as President Barack Obama’s latest amnesty initiative didn’t directly come as an executive action. Obama enlisted the aid of DHS secretary Jeh Johnson to enable DAPA. This came after Johnson expanded DACA (Deferred Action for Childhood Arrivals). Johnson even included people who refused to comply with the amnesty of 1986, the Immigration Reform and Control Act. In effect, Johnson attempted to rewrite federal law.
Johnson’s attempt, however, to override federal law with the DAPA initiative hit a brick wall when U.S. District Judge Andrew Hanen (south Texas) decided to uphold the Constitution. Hanen cited an opinion by Supreme Court Justice John Roberts, reminding all parties, “Public opinions and perceptions about the country’s policies have no place in the resolution of a judicial matter.”
What’s important to remember is that the court ruling noted Obama has not “instituted any program at issue in this case”—no executive orders or other presidential proclamations or communique. Therefore the court tackled only the DAPA memorandum issued by Johnson.
JOHNSON’S DIRECTIVE VS. THE STATES
Johnson, carrying out Obama’s wishes, claimed the latest initiative, DAPA (Deferred Action for Parental Accountability), is appropriate because DHS cannot adequately fulfill its legal duties, “including locating and removing all illegal aliens in the country.” Johnson said DAPA would enable DHS to focus its limited resources “in areas where they are needed most.” Johnson also stated he was doing this for “humanitarian reasons.”
Those claims are neutralized by the citation of Roberts, as well as by issues related to state sovereignty.
The states bringing the suit against the federal government claim DHS’ “justifications are conditions caused by the DHS, are pretexts, or are inaccurate.” After all, DHS continues to be funded “at record levels and is currently spending millions to create the enormous bureaucracy necessary to implement this program.” States also asserted DAPA was “politically motivated and implemented illegally.”
The states cited the number of times President Obama stated he did not have the power to do exactly what DAPA does. The states believe if Obama didn’t have the power, DHS doesn’t either.
States also noted the amount of money needed to fund the new massive program, the fact no fees had been received yet, and the diversion of funds from DHS’ required job to fund the new program.
DAPA, said the states, “violates the Take Care clause of the Constitution and infringes upon any notion of separation of powers.” The Take Care clause comes directly from the U.S. Constitution: “[The President] shall take Care that the Laws be faithfully executed….”
States noted the expense associated with the DHS diktat. For one thing, the Obama administration is forcing states to issue drivers’ licenses to this population. At minimum, for instance, Texas will lose approximately $175 per license after a small fee is paid by each applicant. If only 5 percent of this group applied for a license, Texas would lose “in excess of several million dollars.”
Texas and other states would also pay fees to the federal government for each individual because of the Real ID Act. Other federal programs will also cost states, such as No Child Left Behind and children’s health insurance.
Because the federal government is forcing states to take such actions, states have no choice in the matter.
The opinion noted “contradictions” in the federal government’s position. Driver’s licenses are under the purview of the state, not the central powers. “Even DHS recognizes this reservation.” One example involves naturalization information the federal government gives to alien applicants, admitting that “driver’s license programs are clearly a state interest.”
The court pointed out that when the REAL ID Act was drafted, the authors “did not foresee four to five million individuals obtaining deferred action by virtue of one DHS directive…” Prior to DACA “the yearly average of deferred action grants…was less than 1,000.”
Although media have aimed pens-as-swords at Republicans in Congress, the bill passed by the House (H.R. 240) actually increases funding for DHS. As Speaker of the House John Boehner repeatedly said, the Obama administration’s actions did not comply with law. That factor made this case a critical issue for any American, excluding those who want an authoritarian government vesting all power in a king or dictator.
The House cannot appropriate funds for an illegal program.
MASSACHUSETTS VS. EPA
Ironically, at the heart of the ruling in this amnesty battle is a left of center ruling in a case most Americans probably haven’t heard of although it affects their lives on a daily basis—Massachusetts vs. EPA (2007). That case had to do with the Clean Air Act and how one state can affect another. Massachusetts won for two reasons: state sovereignty and the right to protect itself from another state’s emissions, and because the federal government didn’t want to win the case. Politics prevailed.
Thus, states have the right to protect their sovereignty when it comes to protecting the “health and welfare” of their citizens. Ironically, “[T]he federal government ardently defends against any attempt by a state to intrude into immigration enforcement—even when the state seeks to enforce the very laws passed by Congress.”
The Washington Times summed up the judge’s decision:
“The DHS was not given any ‘discretion by law’ to give 4.3 million removable aliens what the DHS itself labels as ‘legal presence,’” Judge Hanen wrote in issuing an injunction. “In fact, the law mandates that these illegally-present individuals be removed. The DHS has adopted a new rule that substantially changes both the status and employability of millions. These changes go beyond mere enforcement or even non-enforcement of this nation’s immigration scheme.”
The White House plans to appeal.
It is someone ironic that the case supporting the judge’s opinion, Mass. vs. EPA, was a victory for the left on regulating carbon and greenhouse gases, resulting in higher energy, food, travel and other costs for Americans. Now that same victory has upended the Obama administration’s de facto, albeit indirect, legislation driven by nothing more than politics.
Media are issuing alarmist statements suggesting millions will be deported as result of the ruling. That is a lie. Federal officials will not deport millions whimsically, and Congress will tackle reform of the federal bureaucracy, including agencies whose refusal to uphold federal law is a result of trickle down politics from the executive branch.
Any decision to the contrary regarding this case would mark a dangerous moment in the republic, because a precedent would be set permitting a president and his appointees to write laws without consent of Congress. It is a given that Obama knew Johnson’s DAPA memorandum was not legal—the president admitted publicly at least 15 times that such actions could not be taken without Congress initiating a law.
Democrats in the U.S. Senate are blocking the House bill funding DHS, refusing to even debate it, and that should not surprise. If debate ensues, Democrats will not only have to acknowledge the executive branch memorandum is illegal, they will also have to admit they are colluding with the Obama administration to violate federal law.
As Sen. Jeff Sessions (R-Al.) said: “Our laws have been dismantled, stripped bare.”
That fact—a determined effort by Democrats to break federal law purely to pander to lobbyists and a potential voting bloc—will definitely not be forgotten by Republican candidates seeking the presidency come 2016.
(Filed by Kay B. Day/Feb. 17, 2015)
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