Will SCOTUS Rubber-Stamp Amnesty? 5 Reasons Sovereignty Hangs By a Thread

Source: Conservative Review | April 19, 2016 | Daniel Horowitz


Irrespective of one’s views on the underlying policy, if a justice were to adhere to some semblance of legal jurisprudence, Obama’s action would be considered the most unconstitutional act to ever come before the court.  After all, sovereignty is something even King George could not tinker with unless he had the support of parliament.  Yet, after today’s oral arguments before the Supreme Court, we are left hanging by a thread, praying that Chief Justice John Roberts won’t serve as the fifth vote to rubber stamp Obama’s amnesty.

The Insufferable Four Liberals: Until oral arguments began, there was a shred of doubt in my mind that maybe – just maybe this one time – even the four leftists would understand that, although they agree with the political outcome of executive amnesty, it is incontrovertibly illegal.  Unfortunately, all four of them were very clear that they would uphold the administration’s action.  What happened to the statutes?  Justice Sotomayor gives us a political argument instead: “Those nearly 11 million unauthorized aliens are here in the shadows.   The answer is, if Congress really wanted not to have an economic impact, it would … allot the amount of money necessary to deport them, but it hasn’t.”


Treating an illegal edict like legislation: When the courts engage in judicial review of a statute (assuming one believes they have the power to do so), they have definitive text to examine.  The challenge for our side in going after illegal executive action is that there is no legislation to examine.  That is the point.  Thus, the administration is able to do one thing, but draft a memorandum specifically tailored for the courts to review, even if that memo fails to reflect the reality. Solicitor General Don Verrilli and the four liberal justices, along with Justice Roberts, continuously referenced specific language from the carefully crafted memo, as if it reflected reality. …..

“Standing” for Illegal Aliens but not for Texas:  One thing that stuck out to me is that while illegal aliens were given standing to sue for affirmative rights, Obama’s Solicitor General, as well as the four liberal justices, seemed to be skeptical that Texas even has standing to sue the administration. ….

Justice Alito Caught Obama admin in lie about driver’s licenses:  As we pointed out earlier this month, the administration is arguing that Texas has no standing because there is no injury resulting from executive amnesty.  They claim Texas does not have to issue driver’s licenses.  But in a recent Arizona case, the Obama administration joined a lawsuit against the state, forcing them to issue driver’s licenses.  When Alito asked Verrilli why Texas does not have standing if they must issue licenses, he said, “I disagree with that,” and never answered the question.

Will Roberts do a Rewrite?  It appears the four other justices were committed to upholding the 5th Circuits injunction on the executive amnesty.  But there was one rub.  Chief Justice Roberts seemed to open the door for a rewrite of the policy that would, in his mind, make it harmonious with federal law. He seemed to get caught up in the written text of Obama’s edict and the fact that it explicitly deems the illegals “lawfully present.”……

Outcome: While many will cheer today’s news and predict a four-four split, thereby upholding the lower courts and the rule of law, this is really a sad state of our system of governance.  That something this unlawful and radical is only halted by the luck of putting the case before one of the best district judges and the best circuit court portends irremediable problems for the courts down the road. There are already a majority of judges on most other circuits that believe in the same judicial ethos as the four liberal Supreme Court Justices.  And when it comes to Anthony Kennedy or John Roberts, as we’ve painfully learned from Obamacare, marriage, disparate impact, Arizona, and a host of other cases, we are hanging on by a thread.

For those of us who are true constitutionalists, we don’t believe the courts should be the final arbiter of all political questions.  But now that five justices believe they have the power to strike down marriage – the building block of all civilization – how can it be that at least four of them refuse to strike down the most profound lawless action of a president?

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