Somewhere between 20 and 25 times we were told by the self-admitted Constitutional scholar in the White House that he could not take unilateral action via executive order on the issue of immigration. As a matter of fact, we have detailed here on several occasions where it is found in Article I, Section 8 as an enumerated power to the Congress to deal in matters and rules concerning naturalization – not the executive branch. Pretty self-explanatory.
So it shouldn’t be a surprise that a U.S. Federal Judge has blocked President Obama and his declaration. Yes, you could see the anger in the president’s face as he responded in the Oval Office to the legal development. And it is clear the intent is an appeal by the Department of Justice — silly me, I thought they were a non-partisan keeper of our laws.
But perhaps this will be a very heavy lift for the administration and may not happen in its final two years. Then again, if Obama’s amnesty plan was so important, why was it not implemented in Obama’s first two years when he maintained a super majority of Democrats in the House and Senate?
In any event, as reported by Reuters, “President Barack Obama’s administration faces a difficult and possibly lengthy legal battle to overturn a Texas court ruling that blocked his landmark immigration overhaul, since the judge based his decision on an obscure and unsettled area of administrative law, lawyers said.
“In his ruling on Monday that upended plans to shield millions of people from deportation, U.S. District Judge Andrew Hanen avoided diving into sweeping constitutional questions or tackling presidential powers head-on. Instead, he faulted Obama for not giving public notice of his plans.”“The failure to do so, Hanen wrote, was a violation of the 1946 Administrative Procedure Act, which requires notice in a publication called the Federal Register as well as an opportunity for people to submit views in writing. The ruling, however narrow, marked an initial victory for 26 states that brought the case alleging Obama had exceeded his powers with executive orders that would let up to 4.7 million illegal immigrants stay without threat of deportation. “It’s a very procedural point – that he did this too quickly,” said Michael Kagan, a law professor at the University of Nevada, Las Vegas.” You just have to smile when you realize sometimes it’s the simple that confounds the complex — in the military we referred to it as “tripping over mouse turds.”
But this is something we all must realize: all these new regulations and bureaucratic edicts are supposed to go through a comments period before implementation. You know, just another example of those pesky checks and balances, because in a Republic, the rule of law is supposed to reign preeminent.
So what is the next course of action for the Obama administration?
“Hanen’s ruling left in disarray U.S. policy toward the roughly 11 million people in the country illegally. Obama said on Tuesday he disagreed with the ruling and expected his administration to prevail in the courts. The U.S. Justice Department was preparing an appeal of Hanen’s temporary injunction to the 5th U.S. Circuit Court of Appeals in New Orleans, Obama said. The court could consider an emergency request to block Hanen’s ruling, potentially within days, although most of the 23 judges on the court were appointed by Republican presidents. There was no consensus among lawyers with expertise in administrative law and immigration law on whether Hanen would be reversed on appeal. But they said the judge was wise to focus on an area of administrative law where legal precedent is sometimes fuzzy.”
The good news is this does provide states more time to prepare their defense against this implementation — you know, that other pesky little thing called Federalism. The action will have immense layered effects on the states, and it’s worth allowing their voices to be heard.
Here is an interesting point: “The “notice and comment” requirement acts as a brake on all presidents, slowing their plans by months or years. The requirement, though, does not apply to “interpretative rules” or general statements of policy, an exception that Justice Department lawyers said applied to Obama’s announcement in November. Rules that must be submitted for notice and comment are sometimes known as “legislative rules.”
Now I’m just a simple Soldier but it would seem Obama’s declaration was not an interpretative rule but rather a legislative rule — as defined by the Constitution. President Obama usurped an enumerated legislative power of the Congress and therefore, it seems the “notice and comment” specification should apply.
Remember, he said on multiple occasions that this was something beyond his Constitutional powers — well, any of us can interpret that accordingly, even though the President now states he never said that. Sure, Mr. President.
Regardless, we are looking at a lengthy process back and forth. This is a bone which the Obama administration is not going to let go — they promised the radical Hispanic left, La Raza and LULAC such.
However, it seems Congress can go ahead and fund the DHS because it cannot legally take any actions to support an executive edict for amnesty that has now been blocked.
Stay tuned folks.