Opinion from a Libertarian ViewPoint

Erie Times E-Edition Article-If Congress had even a faint pulse and an ounce of pride

Posted by M. C. on November 10, 2019

If Congress had even a faint pulse and an ounce of pride it would take care to enact laws that set immigration policy rather than churning out faux laws that give to presidents discretion tantamount to lawmaking.

an ounce of pride…the only pride my water carrying “representatives” have is in passing larger budgets, increasing debt and war powers.

George Will

When an obviously humane and demonstrably popular policy is implemented by a seriously flawed process, the Supreme Court must do its counter-majoritarian duty. It must insist that not even an admirable social end, supported by a national majority, justifies constitutionally dubious means.

This describes the drama that will unfold Tuesday when the court hears oral arguments concerning Deferred Action for Childhood Arrivals (DACA).

This pertains to the almost 800,000 so-called Dreamers in our midst, people who were under age 16 when brought to America by parents who were not lawfully residents. Congress has long been unable to address the Dreamers’ status by protecting them from the manifestly unjust threat of deportation from the only country they have known.

Barack Obama’s exasperation with the separation of powers, and with the existence of Congress, was even more pronounced than is normal among presidents, especially progressive ones. So he did what he had repeatedly said he lacked the power to do: He made available to these children temporary but renewable legal status and work authorization.

He called this an exercise of ‘prosecutorial discretion.’ This was somewhat novel in the size of the class of individuals affected, and in affirming a right to work and other federal benefits...

The U.S. Circuit Court of Appeals for the Ninth Circuit, which is often in error but never in doubt, acknowledged that presidents have considerable power to undo policies put in place by executive actions of prior administrations.

But the court held that the administration’s reasons for rescinding DACA were arbitrary and capricious and hence violated the Administrative Procedure Act.

A brief from Ilya Shapiro and Josh Blackman (who favor DACA as policy) for the Cato Institute argues that Obama’s action went beyond ‘constitutionallyauthorized executive power.’ Such power is not enlarged ‘when Congress refuses to act, no matter how unjustified the congressional inaction is.’

There is no constitutional implication from Congress’ passivity in the face of this ‘foundational transformation of immigration policy,’ a transformation ‘inconsistent with the president’s duty of faithful execution.’

Furthermore, if the Immigration and Nationality Act actually grants to presidents such discretion to rewrite immigration law, then the INA violates the nondelegation doctrine.

This forbids Congress to delegate to executive agencies essentially legislative powers regarding ‘major questions,’ which surely encompasses immigration policy...

Be seeing you


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