Wall Street Journal:
(Editorial)
May 26, 2015
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.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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