Posted on Nov 10, 2015
POTUS/CinC was just told by the 5th Circuit Court of Appeals he cannot change or make law. Will SCOTUS take up this case for review?
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Judges use Obama’s own words to halt deportation amnesty
By Stephen Dinan - The Washington Times - Tuesday, November 10, 2015
A federal appeals court said President Obama’s own words claiming powers to “change the law” were part of the reason it struck down his deportation amnesty, in a ruling late Monday that reaffirmed the president must carry out laws and doesn’t have blanket powers to waive them.
The 2-1 ruling by the 5th Circuit Court of Appeals punctures Mr. Obama’s immigration plans and is the latest in a series of major court rulings putting limits on the president’s claims of expansive executive powers to enact his agenda without having to get congressional buy-in. In an opinion freighted with meaning for the separation of powers battles, Judge Jerry E. Smith, writing for himself and Judge Jennifer Walker Elrod, singled out Mr. Obama’s own claim that he acted to rewrite the law because Congress wouldn’t pass the bill he wanted.
The key remark came in a speech in Chicago just days after his Nov. 20, 2014, announcement detailing his executive actions. Fed up with a heckler who was chiding him for boosting the number of deportations, Mr. Obama fired back, agreeing that he’d overseen a spike in deportations.
“But what you are not paying attention to is the fact that I just took an action to change the law,” the president said. The two judges said the Justice Department failed to explain away Mr. Obama’s remarks.
“At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes,” Judge Smith wrote.
Whether Mr. Obama acted within the law is the crux of the case.
Texas and 25 other states, which sued to stop the amnesty, argue Mr. Obama went beyond the boundaries set in the Immigration and Nationality Act, which sets out specific instances where, on a case-by-case basis, the Homeland Security secretary can waive penalties and allow illegal immigrants to stay, granting them work permits which then entitle them to Social Security cards, tax credits and state driver’s licenses.
A federal district court in Texas agreed with the states, halting Mr. Obama’s policy, and now an appeals court has also sided with the states.
Writing in dissent on Monday, Judge Carolyn Dineen King dismissed Mr. Obama’s claim that he changed the law, saying presidents often use imprecise language when talking about laws. She said Mr. Obama wasn’t making a legal argument in his response to the heckler.
Mr. Obama’s plan, known officially as Deferred Action for Parental Arrivals, or DAPA, was intended to grant up to 5 million illegal immigrants a proactive three-year stay of deportation and to give them work permits, allowing them to come out of the shadows and join American society — though they were still considered to be in the country illegally. To qualify, illegal immigrants had to be parents of U.S. citizens or legal permanent resident children.
The president characterized his plan as a use of prosecutorial discretion, reasoning that he was never going to deport them anyway, so they should be granted some more firm status.
But the court ruled that he not only didn’t follow the usual rules in making a major policy change, but that his claims of power to grant tentative legal status to a massive class of people went beyond the waiver powers Congress granted him in the law.
Monday’s decision is already reverberating across the presidential debate, with Hispanic-rights activists insisting Mr. Obama file an immediate appeal to the Supreme Court, and vowing to make immigration an issue in the 2016 election.
The top three Democratic candidates for president had already said they not only thought what Mr. Obama was doing was legal, but they had vowed to go beyond it and expand the amnesty to still more illegal immigrants. GOP candidates, meanwhile, have vowed to repeal Mr. Obama’s policies.
By Stephen Dinan - The Washington Times - Tuesday, November 10, 2015
A federal appeals court said President Obama’s own words claiming powers to “change the law” were part of the reason it struck down his deportation amnesty, in a ruling late Monday that reaffirmed the president must carry out laws and doesn’t have blanket powers to waive them.
The 2-1 ruling by the 5th Circuit Court of Appeals punctures Mr. Obama’s immigration plans and is the latest in a series of major court rulings putting limits on the president’s claims of expansive executive powers to enact his agenda without having to get congressional buy-in. In an opinion freighted with meaning for the separation of powers battles, Judge Jerry E. Smith, writing for himself and Judge Jennifer Walker Elrod, singled out Mr. Obama’s own claim that he acted to rewrite the law because Congress wouldn’t pass the bill he wanted.
The key remark came in a speech in Chicago just days after his Nov. 20, 2014, announcement detailing his executive actions. Fed up with a heckler who was chiding him for boosting the number of deportations, Mr. Obama fired back, agreeing that he’d overseen a spike in deportations.
“But what you are not paying attention to is the fact that I just took an action to change the law,” the president said. The two judges said the Justice Department failed to explain away Mr. Obama’s remarks.
“At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes,” Judge Smith wrote.
Whether Mr. Obama acted within the law is the crux of the case.
Texas and 25 other states, which sued to stop the amnesty, argue Mr. Obama went beyond the boundaries set in the Immigration and Nationality Act, which sets out specific instances where, on a case-by-case basis, the Homeland Security secretary can waive penalties and allow illegal immigrants to stay, granting them work permits which then entitle them to Social Security cards, tax credits and state driver’s licenses.
A federal district court in Texas agreed with the states, halting Mr. Obama’s policy, and now an appeals court has also sided with the states.
Writing in dissent on Monday, Judge Carolyn Dineen King dismissed Mr. Obama’s claim that he changed the law, saying presidents often use imprecise language when talking about laws. She said Mr. Obama wasn’t making a legal argument in his response to the heckler.
Mr. Obama’s plan, known officially as Deferred Action for Parental Arrivals, or DAPA, was intended to grant up to 5 million illegal immigrants a proactive three-year stay of deportation and to give them work permits, allowing them to come out of the shadows and join American society — though they were still considered to be in the country illegally. To qualify, illegal immigrants had to be parents of U.S. citizens or legal permanent resident children.
The president characterized his plan as a use of prosecutorial discretion, reasoning that he was never going to deport them anyway, so they should be granted some more firm status.
But the court ruled that he not only didn’t follow the usual rules in making a major policy change, but that his claims of power to grant tentative legal status to a massive class of people went beyond the waiver powers Congress granted him in the law.
Monday’s decision is already reverberating across the presidential debate, with Hispanic-rights activists insisting Mr. Obama file an immediate appeal to the Supreme Court, and vowing to make immigration an issue in the 2016 election.
The top three Democratic candidates for president had already said they not only thought what Mr. Obama was doing was legal, but they had vowed to go beyond it and expand the amnesty to still more illegal immigrants. GOP candidates, meanwhile, have vowed to repeal Mr. Obama’s policies.
Posted in these groups: 
Office of the President (POTUS)
Immigration
Office of the President (POTUS) Immigration
Posted 9 y ago
Responses: 11
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(I know this can be argued and debated back and forth) As a part (Leader) of the Executive Branch, our POTUS holds executive privilege....and I believe you are going to see an increased exercise in that privilege over the next 14 months...do I like it, not necessarily but I do believe wholeheartedly and regardless of what I like/want that this is what we will see.
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I'd expect SCOTUS to punt because there isn't a "pure and ripe" constitutional question that needs to be solved right now. It may self correct in a year. I took a look through the 2-1 decision. BTW it wasn't about "Power of the Pen" alone. It's about proper rule making and whether it was done. It's also about where rule making leaves off and legislatures take over. The first 1/3rd talks about whether or not the states have standing. Answer: Yes. The middle 1/3rd talks about whether the injunction should stay in place. Answer: Yes for two foundation concepts. First is an injury will be suffered. Second is the plaintiffs will likely win on the merits. The merits were essentially the absence of rule making for sure and arguable on the INS/HS authority to do so anyways. The final 1/3rd was the lone dissenting opinion which appeared much more shallow in substance and case law foundation, but poo-pooed the majority opinion as basically reading the law and case law all wrong. Reading between the lines, the District 5 seemed to agree with the lower court and by extension share the Judge's anger and frustration with the Government, essentially citing the shallowness of the Government's arguments. Also not a good idea to piss off the judge. Like clients, they'll spend more time lining up case law to dump you.
So the Supreme's are left with: do you overturn two well enough thought out rulings? On what basis? What judicial process error occurred? The Supremes would be better suited to weigh in if proper rule making occurred and it's a "pure" constitutional case of the Executive stepping on Legislative authority. The time isn't ripe for it. But that's an engineer's thinking which doesn't count 2 cents in this one.
So the Supreme's are left with: do you overturn two well enough thought out rulings? On what basis? What judicial process error occurred? The Supremes would be better suited to weigh in if proper rule making occurred and it's a "pure" constitutional case of the Executive stepping on Legislative authority. The time isn't ripe for it. But that's an engineer's thinking which doesn't count 2 cents in this one.
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CPO Andy Carrillo, MS
Thanks for shedding further light and knowledge on this topic. Do you think Obama's earlier comments about making law was a factor in this decision?
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CAPT Kevin B.
Not at all. That's just political and media noise that the courts ignore rightfully so. Something else occurred to me. The dissenting opinion looks like it was "backed into". That's a style of writing where the author decides up front what the position is and then backs into the support. Notice the narrative of the majority which is forward stepping logic, law, and case law driven. That's where you do the drill of "for this to be OK, then these things have to be OK too" process.
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Let's hope SCOTUS will just let the 5th Circuit ruling to stand. I have always believed any "executive action" that was used in a way to act as law or to skirt existing laws was wrong and was definitely not in the best interest of the USA as a whole. I'm just glad the federal judge stood up to the king.
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