Something is missing amid all of the punditry opinion regarding the recent 5th CCA ruling upholding the injunction against Obama’s implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”) FULL BACKSTORY HERE. Something missing which is more serious than the injunction itself.
What is fundamentally missing is several levels of seriousness.
First the underlying 26 state lawsuit has never been argued. When the states went to federal court to sue the White House (executive action) they asked for an immediate injunction blocking implementation. The states argued two points:
#1) That if DAPA was allowed to move forward with his executive amnesty there would be irreversible harm to the states. Granting a new legal status to illegal aliens, including work authorization, would be financially harmful and also a bell impossible to un-ring/reverse if the underlying lawsuit was settled in their favor.
#2) If DAPA was allowed to be implemented those who were charged with executing the Executive Order would be violating law and thereby subject to a condition of punitive action against them for refusing to break the law.
Two very distinct issues, both of which Judge Andrew Hanen accepted as factual in his decision to issue the injunction. He actually did so brilliantly.
It was the “injunction” blocking the administration which was appealed to the 5th CCA the first time. The White House lost the first appeal, and had two options: 1.) ask the Supreme Court Justice who oversees the circuit to override the decision – that judge is Anton Scalia, they knew they stood no chance. 2.) The DOJ could ask the full CCA to hear their argument, based on “standing”, – that was the route they chose.
The DOJ appealed Hanen’s injunction the second time claiming Hanen held no standing to block their executive action. The DOJ lost that second appeal yesterday, as the 5th CCA affirmed that Hanen did indeed have authority to issue the injunction.
Here’s where people get lost. The DOJ can appeal their appellate court loss to the Supreme Court, however they only lost the appeal to remove the injunction – THE UNDERLYING CASE HAS NEVER BEEN HEARD.
The White House today said they would indeed take their appeal of the injunction to the Supreme Court. That is ridiculous. It is doubtful the Supreme Court would take up a case twice affirmed by courts of appeal solely on the issue of does a federal judge have standing to block an executive action.
This is really important, because this shows something we have continued to state since the original case began to be argued.
In our opinion the White House never intended to win the underlying case. The executive action was clearly unconstitutional as it created an entirely new status of personage: “An Illegal but lawful resident”, complete with employment eligibility.
If President Obama believed he was just using prosecutorial discretion in non-deportation he could do nothing. He doesn’t deport them, and 5+ million (who qualify under DAPA) stay put without change.
Taking no executive action is the same thing as not deporting; but that’s not what he did – he created an executive action to make those illegal aliens “lawful residents”. Again, doing nothing is prosecutorial discretion, taking executive action is something further than discretion.
♦ So why would Obama NOT plan to win a case, yet continue its implementation?
Think about this carefully.
Obama knows if he was able to grant the new status, and create the new category of lawful residency and employment status for 5+ million people, it would be a bell impossible to un-ring. You cannot put that amnesty toothpaste back into the tube.
Obama never planned to win the case; he planned to lose the case but in the interim have carried out the action that is irreversible. It would be impossible to make 5 million people unlawful once their new lawful status was achieved. This was/is the goal all along.
It was the “injunction” that immediately became a bigger issue, because the injunction stopped them from carrying out the unconstitutional Executive Action. Therefore it was the “injunction” that had to be removed if they were to be successful in the original goal.
Ergo the two appeals and now a proclamation they intend to appeal again to SCOTUS.
DHS Secretary Jeh Johnson was the former legal counsel of the Defense Department and as such he was part of President Obama’s Office of Legal Counsel (OLC), prior to becoming Secretary of Homeland Security. Arguably, he was given the cabinet position as a quid-pro-quo for keeping his mouth closed after he told Obama the extended Libyan military engagement was unlawful under the War Powers Act.
Secretary Johnson knows DAPA puts ICE and immigration officials in a precarious position of following an unconstitutional executive action. This is the second part of the harm outlined in the initial injunction, and included in the Hanen ruling using President Obama’s own words; a legal argument affirmed by the 5th CCA who upheld Hanen’s injunction twice, once on “merit” the second time on ‘standing”.
With both President Obama and DHS Secretary Jeh Johnson fully aware the construct of DAPA is unconstitutional overreach (they don’t even try to argue the merit), and yet still attempting to unlawfully force immigration officials to implement DAPA, they have crossed a legal threshold and impeachment proceedings are most certainly warranted.
However, that would take a congress willing to put Jeh Johnson into administrative proceedings that draw out the unlawful action and his contribution therein. Obviously congress is unwilling to do so.
…And that’s the salt in the wound. It does not go unnoticed that congress has done nothing, nada, zippo, zylch, to block DAPA in any manner method or form. Why? Because congress is fully aligned with President Obama when it comes to illegal immigation, and as a consequence this congress has abdicated their oversight to one judge in Texas.
One judge in Texas, Andrew Hanen, who single-handily stands against this unconstitutional regime like a flea holding back the flames from a furnace !!