Once again it appears that President Obama has overstepped the bounds of his Presidential authority and that the matter of granting amnesty to illegal aliens is a matter for the Congress of the United States … [my comments in bracketed blue italics]

White House: Fifth Circuit Judges Misinterpreted The Law On Immigration Decision

The White House reacted to the news that the Fifth Circuit court of appeals denied an appeal from the Obama administration to lift a stay on his executive amnesty plan, accusing two judges in the decision of interpreting the law incorrectly.

“Today, two judges of the Fifth Circuit chose to misinterpret the facts and the law in denying the government’s request for a stay,” White House spokesperson Brandi Hoffine said in a statement to Breitbart News. The court ruled against Obama administrations appeal with a 2-1 vote.

[Stunning that a non-lawyer spokesman, Brandi Hoffine, can put forth the legal conclusion that two of the three Judges hearing the case misinterpreted the facts, based upon a single dissenting judge, without citing a single competent legal source in the White House.]

In response Hoffine cited the dissent from Judge Stephen Higginson, who was appointed by President Obama.

“As the powerful dissent from Judge Higginson recognizes, President Obama’s immigration executive actions are fully consistent with the law,” she said.

[This is the type of executive action that President Obama himself said that he did not possess. 22 Times President Obama Said He Couldn’t Ignore or Create His Own Immigration Law.]  

Describing Obama’s executive action as an effort to bring “accountability” to the nation’s immigration system, Hoffine insisted that the president had the authority to issue amnesty to a group of illegal immigrants.

[It is the height of hypocrisy for any White House spokesperson to speak of accountability when most of the numbers, locations, destinations, medical conditions, and criminal actions of illegal aliens have been hidden from the public as well as the local and state governments that were suddenly required to deal with an influx of illegal aliens thus burdening the system and the taxpayer unnecessarily. Where the original concept was to allow the “children of illegal aliens” to pursue higher education and professional certifications, DHS programs have morphed into a morass of unconstitutional and unaccountable activities for which the Administration refuses to disclose.] 

“They are squarely within the bounds of his authority and they are the right thing to do for the country,” she said.

[This is pure balderdash coming from the liars that seem to act as White House spokespeople. It is up to the court, not the White House, to ultimately determine if a gross exercise of Presidential power and Executive Agency discretion – meant to redress individual and small group injustices – can be extended to blanket amnesty for millions of illegal aliens not to benefit the United States or its people, but to serve the political agenda of the President and his party of progressive socialist democrats.]

Source: White House: Fifth Circuit Judges Misinterpreted The Law On Immigration Decision - Breitbart

Before we dismiss Judge Higginson’s dissent as just the judicial legerdemain of an Obama-appointed lackey or just another progressive socialist democrat jurist, let us consider the clarity with which he frames the argument of the case …

STEPHEN A. HIGGINSON, Circuit Judge, dissenting:

Agreeing with the district court, the plaintiff-states recognize that removal and deportation of non-citizens is a power exclusively of the federal government.

Their complaint, however, is that the federal government isn’t doing its job; that whereas Congress, through unambiguous law, requires the identification, apprehension, and removal of non-citizens who lack documentation to be in the United States, see 8 U.S.C. § 1225(a)(3) (inspection); id. § 1225(b)(2)(A) (detention); id. § 1227(a) (removal), the President is thwarting that law.

According to the plaintiffs, the President refuses to remove immigrants Congress has said must be removed and has memorialized that obstruction in a Department of Homeland Security (“DHS”) memorandum.

This, plaintiffs contend, is a Take Care Clause violation, a Youngstown scenario courts must correct; furthermore, because deferring removal of immigrants causes states injury and has substantive impact, the plaintiffs contend that the DHS memorandum is invalid without the full apparatus of rulemaking, notice and comment and public participation, under the Administrative Procedure Act (“APA”). 5 U.S.C. § 553.  

The district court offered extensive viewpoints on the first point, but ruled in plaintiffs’ favor only on the second. The government seeks to stay that ruling, which is the matter before us.

My colleagues conclude that the government has not made a “strong showing” of likelihood of success on the merits. Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quotation marks and citation omitted). I am grateful to them for their analysis and collegiality, and our exchange has informed my views, although I dissent as follows.

Judge Higginson has taken care to frame the argument, so let’s see if he can frame his dissent with the same clarity …

D. Commonsense

Judge Kavanaugh brackets his National Mining Association framework for the § 553 analysis applied above with commonsense.

First, he offers that “agency action that merely explains how the agency will enforce a statute . . . in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule—is a general statement of policy.” Nat’l Mining Ass’n, 758 F.3d at 252.

The Supreme Court, in Arizona, resolved that immigration officials have “broad discretion” to enforce the federal immigration laws, including the “deci[sion] whether it makes sense to pursue removal at all.” Arizona, 132 S. Ct. at 2499.

[This is incorrect. No government agency has the “broad discretion” to simply ignore laws passed by Congress, the sole government law-making body in the land. To allow any government agency to simply ignore laws with which they disagree would promote anarchy, political corruption, and nullify the “rule of law,” one of the guiding principles of the United States of America.]

Second, Judge Kavanaugh notes that a token of a general statement of policy is that the agency would have legal authority to undertake the action absent the guidance document. See Nat’l Mining Ass’n, 758 F.3d at 253 (“[W]hen the agency applies [a general statement of] policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.” (internal quotation marks and citation omitted)).

[Again, this is incorrect. No government agency, with or without a guiding document such as the one by DHS and cited in this case, can thwart the law nor the explicit wishes of Congress as codified in legislation.]

As described earlier, deferred action has existed for half a century, reflected in longstanding regulations as an “act of administrative convenience,” see 8 C.F.R. § 274a.12(c)(14), and recognized by the Supreme Court as an appropriate exercise of the Executive’s removal discretion, see Reno, 525 U.S. at 483–84. Indeed, the same deferred action decisions for which the November 20 memorandum provides guidance already are permissible under the unchallenged 2014 enforcement priorities memorandum, which is explicitly incorporated into the November 20 memorandum. See Memorandum from Jeh Charles Johnson, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014).

[Again, this is wrong. While the Administration may have used their broad powers of discretion to resolve immigration issues as a matter of convenience in the past, this in no way provides a legally controlling authority for the present actions of the Administration which leads to Amnesty for millions of people – a broader class of impacted individuals than contemplated previously or by Congress and their explicit legislation. You simply do not excuse bad behavior by pointing to prior bad behavior and claiming it is precedential.]

The November 20 memorandum, by incorporating a framework the plaintiffs admit is discretionary, necessarily contains at least that identical level of discretion.

[While the principle may be the same, the disparate impact certainly is not, especially given the costs and societal harms to the states impacted by the flow of illegal immigrants who will now become eligible for state and federal programs meant for citizens and financed by citizens.]

Conclusion.

I would hold that the underlying issue presented to us—the order in which non-citizens without documentation must be removed from the United States—must be decided, presently is being decided, and always has been decided, by the federal political branches. See Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.”).

[There is a subtle logic flaw in the Judge’s statements. Yes, the decision is a federal matter, but it cannot be decided by the federal political branches. Branches? No, the Constitution is abundantly clear; only the Congress can make laws through the legislative process and the Executive is responsible for carrying out that law. And, if the law is not executed faithfully and in compliance with the law by the Executive Branch, it is up to the Judiciary to remedy the situation with their rulings and guidance. Exactly what is happening in the present instance. The plaintiffs-appellees have alleged that the Administration has overstepped the bounds of their discretionary authority causing harm to the plaintiffs and are now seeking judicial redress for the harms committed by the Executive Branch.]

On the expedience of immigration measures, sensible things can be said on all sides, mindful that our country is an immigrant society itself.

[This statement is misleading. We are a nation of legal immigrants who have obeyed the laws and have come to the United States to assimilate and to help build this great nation into an even greater nation. The present case involves illegal aliens who have broken one of more federal laws to cross the border and to illegally stay in the country. Other than the initial offense of entering the country without permission (a misdemeanor on the first offense, a felony if they were previously deported), you find identity theft, perjury, forgery of documents, and various other criminal actions that are felonies. And, even the reporting of crimes committed by illegal immigrants is often withheld by government officials for political reasons.]

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.

[Clearly this is not a political matter, but a challenge to our Constitution and the authority of the President of the United States to disregard those laws that he deems to be politically inexpedient and harmful to his political agenda.]

I would not affirm intervention and judicial fiat ordering what Congress has never mandated.

[To deny the hearing of this Constitutional issue of this magnitude and importance is to clearly demonstrate that one Judge may be acting on his political beliefs rather than protecting the Judiciary and the Constitution he has sworn to preserve, protect and defend the to the best of his ability.]

<Source: Fifth Circuit Court of Appeals - 15-40238 - 05/26/2015 - State of Texas, et al v. USA, et al>

Bottom line …

This is one of the most generous nation on the planet. Nobody wants to deport all of the law-abiding illegal aliens that currently exist in the United States. Nor do we want to keep importing illiteracy, poverty,  sickness, and crime.

We want Congress to makes the laws, we want the President to enforce the laws, and we want the Judiciary to rule on the constitutionality of those laws. We want our politicians to do their jobs and represent the people of the United States. We do not want political fiefdoms and political corruption on behalf of the special interests.

As President Obama has exclaimed on numerous times, he is the President, bound by our Constitution, and is not the Emperor of the United States.

Obama: ‘The Problem Is…I’m Not The Emperor Of The United States’

When asked specifically what he would do to make sure more families weren’t deported, Mr. Obama responded: “This is something I’ve struggled with throughout my presidency. The problem is that I’m the president of the United States, I’m not the emperor of the United States.

This is a case that needs to be addressed in Congress and the Supreme Court else President Obama could just very well be the emperor of America. Including the power to declare himself above the Constitution and not subject to its term limits.

-- steve