Judge Napolitano: Congress Has the Power to Rein In Obama and His Unconstitutional Amnesty

05/26/2015

Fox News’ resident expert on legal opinions of the courts discussed Tuesday’s decision of the Fifth Circuit to deny the administration’s request to lift a hold on Obama’s unconstitutional executive amnesty.

The judge appeared with Neil Cavuto for a chat about the law and politics. Unfortunately, it will be a chilly day in hell before the squishy Republican Congress will adequately defend the Constitution from the lawless black President. Anything as harsh as the impeachment remedy suggested by the judge wouldn’t celebrate diversity or appreciate the historic nature of America’s first black President. (The legislators should also read Daniel Horowitz’s informative list: 6 Reasons Congress Can’t Rely on Courts to Stop Executive Amnesty.)

NAPOLITANO: When the case is finally tried in district court, the government will probably lose, the President will probably lose, and for that reason they’re going to keep the injunction in place.
I cannot tell you how rare this is in American history for a succession of federal judges to stop the President of the United States from doing what he says he has the authority to do, but we saw it happen today.

CAVUTO: But what changes if the President is still freezing these deportations? He’s still doing it.

NAPOLITANO: The President is breaking the law. That’s what two judges said in United States courts.

CAVUTO: He’s gotta ship ‘em back in that event? Or let the deportation process continue?

NAPOLITANO: What’s the remedy when the President doesn’t do what he took an oath to do? It’s a Congressional remedy, it’s the “I” word that nobody wants to talk about — it’s impeachment.

But we now have three out of four federal judges who have looked at this have said the President is breaking the law, the President is acting outside that box of the Constitution gives him in which Presidential discretion [crosstalk] …

I would think that the White House will have to appeal this to the Supreme Court. The initial appeal is to Justice Scalia of all people because he happens to be the circuit justice, the member of the Supreme Court who hears emergency appeals from that part of the United States, the Fifth Circuit which is Louisiana and Texas and the surrounding states. So it would be up to the President if he wants to dispatch his lawyers there. This does not look good for him.

The Washington Times provided details on the decision.

Federal appeals court deals blow to President Obama’s amnesty, By Stephen Dinan, Washington Times, May 26, 2015
A federal appeals court refused to lift an injunction against President Obama’s deportation amnesty in a ruling Tuesday that delivers a second major legal setback to the administration and keeps millions of illegal immigrants on hold.

The U.S. Court of Appeals for the Fifth Circuit sided with a lower court that ruled Mr. Obama probably broke the law in taking unilateral action last year to grant an amnesty from deportation. The three-judge panel, ruling 2-1, shot down Mr. Obama’s hopes of quickly restarting the amnesty, and make it likely he’ll have to go to the Supreme Court to try to win his case.

The majority, Judges Jerry E. Smith and Jennifer Elrod, said the president’s new program, known as Deferred Action for Parental Accountability or DAPA, is a binding policy that should have gone through the usual public notice and comment period, instead of being announced unilaterally by Mr. Obama and Homeland Security Secretary Jeh Johnson late last year.

“We live in a nation governed by a system of checks and balances, and the president’s attempt to bypass the will of the American people was successfully checked again today,” said Texas Gov. Greg Abbott, who as his state’s attorney general last year began the lawsuit challenging the new amnesty.

Twenty-five states joined Texas in suing to halt the amnesty, arguing they would bear new costs in having to issue driver’s licenses to the illegal immigrants and provide health care and other services to them. The states said the president’s actions were unconstitutional or, at the very least, illegal.

First a district court, and now a federal appeals court, have sided with Texas, serving as twin legal rebukes to Mr. Obama and his defenders, who had insisted the steps he took were consistent with the law and with previous presidents’ actions.

Immigrant rights advocates said they will keep fighting, and tried to cast both the district and appeals courts as legal outliers.

“We are on the right side of history, the right side of justice,” said Marielena Hincapie, executive director of the National Immigration Law Center.

The rulings do not affect Mr. Obama’s 2012 amnesty for so-called Dreamers, which has already granted tentative legal status to more than 600,000 illegal immigrants, and it also doesn’t take away Mr. Obama’s ability to decline to deport illegal immigrants. That means none of the more than 4 million people in question are likely to be kicked out of the country.

But the judges have ruled that Mr. Obama can’t go further and grant many of those people an affirmative status carrying all sorts of benefits, including driver’s licenses, tax credits and preferential work status under the terms of Obamacare.

Immigrant rights advocates challenged Mr. Obama to use his authority to halt all deportations until he can find a way to work with Congress on a new immigration law.

“We call on President Obama to immediately act on that power by halting all deportations until the day when our broken immigration system can be replaced by humane, rational policies that recognize the value and humanity of our immigrant community members,” said Jessica Bansal, litigation director for the National Day Laborer Organizing Network.

The judges’ rulings hinged in large part on the findings of District Judge Andrew S. Hanen, who halted the program in February, just two days before it was to accept the first applications.

Judge Hanen ruled that an earlier version of the amnesty, which Mr. Obama announced in 2012 and which applied to so-called young adult Dreamers, showed that the administration was approving most applications. Judge Hanen said that undercut Mr. Obama’s argument that he was showing discretion rather than issuing a binding policy.

The judges in the majority opinion Tuesday said Mr. Obama’s expansion appeared to be the same kind of policy, and would have serious effects on the states.

“DAPA modifies substantive rights and interests — conferring lawful presence on 500,000 illegal aliens in Texas forces the state to choose between spending millions of dollars to subsidize driver’s licenses and changing its law,” the judges wrote.

The judges also said it would be unfair to illegal immigrants to let the program go into effect on the off chance it’s later ruled illegal or unconstitutional, because the government would then have a list of people who came forward but didn’t get status.

They also denied a government request to allow the amnesty to go into effect in the 24 states that didn’t sue, saying that it was critical to have a “uniform” rule on immigration, as the Constitution requires.

Judge Stephen A. Higginson dissented from Tuesday’s ruling, saying he would have left the fight over immigration policy to the White House and Congress, saying Mr. Obama should have broad discretion to decide who gets deported and how he goes about that.

Just Higginson also said the fight was a political battle, not a legal one, and said the courts should stay out of it altogether.

“The political nature of this dispute is clear from the names on the briefs: hundreds of mayors, police chiefs, sheriffs, attorneys general, governors, and state legislators — not to mention 185 members of Congress, 15 states and the District of Columbia on the one hand, and 113 members of Congress and 26 states on the other,” he wrote.

Immigrant rights advocates praised Judge Higginson and predicted other judges would agree with him as the case makes its way through the courts.

The administration will have to decide its next step, though the ruling is an embarrassing defeat for Mr. Obama, who earned a law degree at Harvard Law School and taught at the University of Chicago. That drew derision from Louisiana Gov. Bobby Jindal, whose state is host to the appeals court that issued Tuesday’s ruling.

“The Harvard Law School is getting a bad reputation. It turns out that their most famous graduate has a problem obeying the law,” said Mr. Jindal, who is pondering a bid for the White House in 2016.

Mr. Obama had hoped Congress would pass a law legalizing illegal immigrants, but prospects dimmed in early 2014 after House Republicans balked, saying they didn’t trust the president to carry out the law.

Mr. Obama, who had repeatedly denied he had powers to act unilaterally, then reversed himself after last year’s elections and announced his policy, promising to halt deportations for most illegal immigrants, and to grant a large subset of them specific legal status and work permits.

Since them, however, the administration has been beset with legal troubles, including violating Judge Hanen’s February injunction by approving about 2,000 amnesties even after the court had ordered its halt.

Mr. Johnson, the Homeland Security secretary, asked for an internal investigation to try to figure out how his employees violated the judge’s order. As of now, the department is blaming a technical glitch, saying applications weren’t weeded out of a computer system after the ruling.

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