Wall Street Journal: Obama’s Remedial Legal Education

This Wall Street Journal review & outlook examines the rebuke of President Obama’s immigration order by the 5th Circuit Court of Appeals.

America’s most powerful former law professor is getting a re-education in the Constitution, and on present course President Obama might flunk out. Witness Tuesday’s federal appeals-court rebuke of his 2014 immigration order, including language that suggests the Administration will also lose on the legal and policy merits.

Mr. Obama caused a furor in November when he suddenly claimed powers he had previously said he didn’t have to award legal status and work permits to millions of illegal immigrants. Texas and 25 other states sued, claiming injury and a violation of their sovereign powers under the Constitution. Federal Judge Andrew Hanen issued a preliminary injunction for the states in February, and on Tuesday the Fifth Circuit Court of Appeals shot down the Administration’s request to lift the injunction.

The 2-1 ruling by a three-judge panel found that the Administration had failed to make its case that Texas and the other states suffered no injury if Mr. Obama’s rule was implemented. Texas cited the fact that it would have to issue driver’s licenses to the newly legal immigrants, and the court agreed this was a cost. Even if Texas raised its license fees to cover the costs, the fact that it had to change its law to accommodate the federal rule was also an injury.

This matters for the merits down the road because it means the judges agree that Texas has the “standing,” or legal basis, to sue. The Administration claims that under the Constitution the feds are supreme on immigration law. This is true when Congress passes a statute. But such supremacy is suspect when the executive branch unilaterally rewrites the law and imposes new burdens on the states in illegal fashion.

The Administration claims it is merely allowing immigration officers to apply routine “prosecutorial discretion” on a case by case basis not to deport illegals. But the court noted that if this were true “we would expect to find an explicit delegation of authority” to implement the Obama rule—“a program that makes 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits—but no such provision exists.” (Our emphasis.)

In summary, said the court, “the United States has not made a strong showing that it is likely to succeed on the merits.”

The ruling means that Mr. Obama’s order will remain in abeyance—perhaps into the final days of his Presidency. The Administration may seek a hearing of the full Fifth Circuit, though it will probably be denied given the careful legal reasoning of the two-judge majority. The Administration will then no doubt appeal the injunction to the Supreme Court, even as Judge Hanen proceeds to consider the merits of the Texas claims.

The Fifth Circuit decision vindicates the rule of law and shows again how Mr. Obama is exceeding his legal authority. But it is also a tragedy for immigrants who Mr. Obama teased with his illegal legalization. After last year’s election, many GOP leaders believed they had a chance to pass reform that addressed specific immigration problems—for farm or high-tech workers, for example.

But by acting on his own Mr. Obama poisoned the politics of immigration reform for the rest of his tenure. Republicans who favor reform have no chance to bring along angry back-benchers who have zero trust in the President to follow any immigration reform that Congress passes. This may have been part of Mr. Obama’s plan, letting him take sole political credit among Hispanic voters for legalizing 4.3 million while causing Republicans to again seem anti-immigrant.

Mr. Obama could have avoided this mess if he had recalled his law classes on the separation of powers. That’s where he should have learned that the federal government can’t run roughshod over states and that the courts are an independent branch of government that can call out a President for breaking the law.

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