Wednesday, January 27, 2016
The Supreme Court orders the president to prove that he is faithfully executing the law
On four separate occasions, President Obama swore that he would "faithfully execute the Office of President." Yesterday, the Supreme Court told him to prove it. As expected, the justices voted to review Texas's challenge to Obama's executive action on immigration, known as DAPA (Deferred Action for Parents of Americans). Critically, the Court ordered the Obama administration to answer a pivotal question: Whether DAPA "violates the Take Care Clause of the Constitution."
In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. However, with pens-and-phones replacing checks-and-balances, the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers.
On November 20, 2014, President Obama announced DAPA. This executive action purported to rely on "prosecutorial discretion" to defer the deportations of up to 5 million aliens and grant them work authorization. Two weeks later, Texas attorney general Greg Abbott (who had just been elected governor and would take office in January 2015) challenged DAPA in federal court in Brownsville. Two months later - and two days before the Department of Homeland Security would have begun accepting new applicants - Judge Andrew Hanen put DAPA on hold nationwide.
Judge Hanen found fatal the government's failure to comply with the notice-and-comment requirements of the Administrative Procedures Act (APA). Because Hanen ruled on narrow grounds, the court did not need to address whether the president had failed to comply with the Constitution's requirement that he "take care that the laws be faithfully executed." The case was then appealed to the Fifth Circuit Court of Appeals in New Orleans. In July, a divided court affirmed Judge Hanen's ruling on administrative-law grounds. It, too, did not reach the constitutional question.
In November the United States appealed the case to the Supreme Court and asked the justices to consider two questions: First, whether Texas had suffered a sufficient injury to have standing to challenge DAPA in federal court; and second, whether DAPA complies with the APA. The government implored the Court to stay away from the constitutional question. In a footnote, the Justice Department wrote that "neither court below addressed" the "constitutional question," which had "no independent content" - that is, the constitutional claim had no merit, and was not even worthy of consideration.
But Texas had a different plan. In its brief to the Supreme Court, Texas solicitor general Scott Keller invited the justices to consider an additional question: "Whether DAPA is contrary to law or violates the Constitution." The justices took Keller's offer and made it more specific. On Tuesday, the Court ordered that "the parties are directed to brief and argue the following question: `Whether the Guidance violates the Take Care Clause of the Constitution.'"
With this decision, the justices directed the president to justify DAPA and prove that his executive action on immigration is consistent with congressional design, not an effort to rewrite the law. Based on my initial research, this is the first time the Supreme Court has ever asked the president to state this constitutional case. Indeed, I could only locate three instances where the Court ruled against the executive branch, finding that the Take Care Clause limits its authority. (In different contexts, it has been cited to bolster the president's power.)
First, in 1838, the justices invoked the clause to rein in a rogue postmaster general, originally appointed by President Andrew Jackson, who had chosen not to enforce a directive of Congress. In Kendall v. U.S. the Court ruled: "To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible." In other words, the executive branch cannot forbid the enforcement of the laws.
Second, in the landmark 1952 decision of Youngstown Sheet & Tube Co. v. Sawyer, the Court found that President Harry S. Truman lacked the authority to seize steel mills without congressional authorization. Justice Hugo Black concluded, "In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." Truman's unilateral actions violated the Take Care clause.
Third is the Court's 2008 decision in Medellin v. Texas, which was argued by then-Texas solicitor general Ted Cruz. In that case, the Court held that Congress had not yet not given President George W. Bush the statutory authority to enforce a treaty. Chief Justice Roberts, writing for a 6-3 majority, explained that this treaty could become binding only "through passage of legislation by both Houses of Congress," not by the president's unilateral action.
In neither Youngstown nor Medellin did the justices ask the president to prove that he was faithfully executing the laws (Kendall came to the Court on a writ of error, so there would not have been a question presented). Faced with an unprecedented expansion of executive powers, United States v. Texas is the first instance where the Supreme Court has put this burden on the president.
As I've explained elsewhere in a two-part series (Part I in the Georgetown Law Review Online and Part II in the Texas Review of Law & Politics), DAPA is not consistent with previous exercises of deferred action and constitutes an attempt to navigate around an uncooperative legislature. This pattern of behavior amounts to a deliberate decision not to act in good faith, but in an effort to undermine the Laws of Congress. The president's duty under Article II has been violated.
Maybe the justices will agree with me, maybe they won't. The mere fact that the Court asked the government to brief this question in no way suggests how it will rule. But at a minimum, the justices recognized that the resolution of this foundational case requires a full accounting of the separation of powers - including the president's own testament. However the Court rules in this case, it will set a powerful precedent for presidents of both parties, who seek to rewrite the law without Congress. In 2016, the president of the United States will at last meet the Take Care clause.
These Leftist Double Standards are Simply Mindboggling
A comment from Australia on a situation familiar in most Western countries
Until recently most folks would have been rather ashamed to be found guilty of committing gross double standards, horrific hypocrisy, and being swamped with logical contradictions. But regrettably many today not only do not mind all this, but even wear it as a badge of honour.
And there is no group more guilty of all this than the secular left. They regularly delight in utter hypocrisy and rampant double standards. But in an age where reason, logic and morality mean very little, they don't seem to mind a bit being caught out time and time again with such duplicity and deception.
Examples of this are everywhere to be found. Let me just offer two very recent cases of this, both from Australia. The first one comes from Tasmania. As one news report states:
"Former Greens leader and Senator Bob Brown has been arrested during a community protest over logging in northwest Tasmania, after he refused to leave the site. Mr Brown was protesting with activists about the Forestry Tasmania's logging project at Lapoinya when he was asked by police to leave the site but refused.
He was taken to Burnie police station to be processed before he is released from police custody. Steve Chaffer from the Bob Brown Foundation told AAP that Mr Brown had gone up to support the community protest. He said the arrest is a reflection of new "draconian" laws in Tasmania which prevent protests at workplaces."
Um, and what would those draconian laws be Mr Brown? Oh yeah, exclusion laws - you know, the very ones you and the Greens fully supported when it comes to peaceful vigils outside of abortion clinics. You don't want any of those crazed baby lovers anywhere near those death mills, and you find nothing draconian about such laws at all. But here, well..
Jim Collins, head of FamilyVoice Australia's Tasmania branch was quick to get a media release out highlighting this gross hypocrisy. He writes:
"Tasmanian Greens former leader Bob Brown has been arrested for protesting inside an exclusion zone around a northwest logging site. Everybody knows Bob Brown is passionate about our environment. But where was his objection in 2013 when all Tasmanian Greens MPs voted for a draconian law prohibiting any form of protest - even silent prayer - inside a 150 metre exclusion zone around abortion facilities?
Graham Preston is currently on trial in a Hobart court for standing peacefully near an abortion clinic, holding a sign saying: "Everyone has the right to life, Article 3 Universal Declaration of Human Rights." The back said: "Every child has the right to life, Article 6 Convention on the Rights of the Child." His second sign showed an unborn child eight weeks from conception.
Bob Brown's protest was designed to save trees, and he faces a $10,000 fine. By contrast, Graham Preston wanted to peacefully save human lives. He faces a possible $11,550 fine and/or one year in jail. If Green activists want to protest about restrictions on their freedom to protest, removing our abortion clinic `no go areas' should be on their protest priority list too!"
Yes exactly, but do not expect any rational clarity and logical consistency anytime soon from the mad hatter Greens. They seem to prefer things to be as irrational, bizarre and contradictory as possible. The secular left are experts at all this, after all.
Things get no better in the Australian state of Victoria. The radical leftist Labor government there seems to be on a crusade to stamp out biblical Christianity. They have already told us that religious Christmas carols are verboten at Christmas, and now want to tell the churches just what is and is not sinful behaviour.
They want to ban all help for any homosexual who may want assistance in exiting the lifestyle. Nope, they must not be allowed to have any choice in the matter. Homosexuals must remain as they are, and any attempts to help them go otherwise will result in Big Brother Victoria throwing the book at you.
I wrote about this diabolical anti-Christian bigotry here: billmuehlenberg.com/2016/01/25/our-victorian-gaystapo/
But let me try to get this straight. If you happen to be a homosexual in Victoria who would like some help in getting out of the lifestyle, the government will deny you that right, and prosecute anyone who dares to offer such assistance. Right, got it.
Yet I am 100 per cent certain that Victorian Premier Daniel Andrews and his Labor Party are fully supportive of men who want to become women, or women who want to become men. They would simply squeal with delight over cases like that of Bruce Jenner.
They would enthusiastically promote, endorse and celebrate such "transitions" and would insist that all available help be given to them, all at the taxpayer's expense of course. One can completely ignore reality and biology and simply proclaim you are not who you were born to be, and the secular lefties just love it.
`Of course you can be any gender you want to be honey. How dare I or anyone else prevent you from choosing for yourself just what you want.' But hey, when it comes to homosexuality, it is a completely different story: `Sorry bud, but once homosexual, always homosexual. You were born that way, it is immutable, and we will make it a crime to even suggest otherwise. Tough luck bud, you must remain as you are, because we say so.'
Hmm, gotta love the double standards of Andrews and the loony left. Biology is merely a figment of our imagination, and choice is the name of the game - indeed, a fundamental human right. But those who seek to leave one very PC lifestyle have no rights whatsoever, and any and all choices must be stripped away from them.
Never mind the many thousands of ex-homosexuals who have proven what a lot of baloney the "born that way" mantra is. I know many of these people. Real change is possible, and those who seek such change have every right to get any help required.
But not here in the People's Republik of Viktoria. Fuhrer Andrews has decided that the right to choose will not be available to any homosexual who wants out, and they must remain as they are, because the State always knows best. Folks, in my books that is just about as fascist and totalitarian as you can get.
But with the gaystapo now running the show here, we can expect even worse hellishness to come. If you happen to be a Bible-believing Christian who lives in the police state of Victoria, you now have to decide if you are ready for prison ministry.
There will be no other options here: you will either remain true to Christ and His Word and become an enemy of the State, or you will renounce Christ and cozy up to the pink dictators. It is your choice. But I implore you to choose wisely my friend.
Welcome to the Brave New World of secular left hypocrisy.
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Posted by JR at 1:25 AM