Finally, an appellate court last week ruled what we already knew: Former President Barack Obama's 2012 edict providing amnesty for hundreds of thousands of young illegal migrants was unlawful. But, before you celebrate believing this was a victory for the rule of law, think again.
The 5th Circuit confirmed what Obama himself proclaimed on numerous occasions — a president did not have the authority to unilaterally provide amnesty for these illegal migrants and to grant them working papers. However, the higher court remanded back to the lower court the question as to whether the illegality pertained to undocumented youths already in the country.
Obama obviously knew that at some point his directive would be struck down, but what did he have to lose in declaring it anyway — other than an erosion of the presidential regard for the Constitution?
His order enabled him to pander to the growingly significant Hispanic voting bloc and his leftist base right before a tough 2012 reelection. Despite its clear illegality, Obama knew that his decree would stay in effect through, and for quite some time after, the election because of the glacial pace of the judicial process.
Well, it's now 10 years later, and the illegal migrants illegally provided legitimacy by Obama in 2012 have remained in this country all this time. But Obama can gloat even more in that the appellate court last week couldn't find the courage to totally undo his illegal directive and declare that the illegal border crossers — either future migrants or those already here — would not have legitimacy unless Congress confirmed such through legislation.
Instead, the court centered its opinion on only prospective applicants under the Deferred Action for Childhood Arrivals (DACA), and punted on those already here, remanding that issue back to the district court.
The illegal migrant lobby lost the battle, but won the war.
The cabal of radically left open borders advocates caught one break after another in allowing this illegitimate decree to remain in effect this long. Let's not forget that it was Chief Justice John Roberts who years ago wrote an awful opinion rejecting President Donald Trump's reversal of DACA.
Rather than ruling on the merits and junking this unconstitutional directive from Obama, Roberts used a technical administrative rationale for his rejection of the Trump reversal.
The justice claimed that the Trump administration did not adequately provide a substantive rationale for wanting to reject the Obama decree. But you don't have to be a Harvard Law grad to understand that the Constitution already notes that it is Congress that has the last word on immigration law. See Article I, Section 8, Clause 18 of the U.S. Constitution.
Moreover, since Obama never sought congressional approval to lock in his action, his executive order could easily be reversed by his successor with the incoming president's own executive order.
Alas, as was the case in several other Roberts decisions, including Obamacare and Pennsylvania election irregularities, Roberts simply avoided taking the main issue head on and relied on tangential justifications such as calling Obamacare a tax or the election issue time-barred or moot.
In his review of DACA, Roberts was able to allow the illegal migrants to stay here for years on end (avoiding the Court from getting media backlash), without having to even rule on the issue of whether DACA passed constitutional muster.
So now the lower court must deal with the modified DACA regulations that the Biden administration conveniently put into effect in August of this year. These rules are likely to be no more palatable constitutionally than was the Obama edict stricken by the court. The bottom line is that Congress still has not codified these DACA changes, regardless of whether they relate to existing or prospective illegal border crossers.
Nevertheless, that case will probably be tied up for months or years to come and the message continues to be sent out to the world that it's worth the cost and the danger of the trek through Central America to make it to the Texas border — because once your toe hits American soil, you'll probably be here for the rest of your life.
Steve Levy is President of Common Sense Strategies, a political consulting firm. He served as Suffolk County Executive, as a NYS Assemblyman, and host of "The Steve Levy Radio Show." He is the author of "Solutions to America's Problems" and "Bias in the Media." www.SteveLevy.info, Twitter @SteveLevyNY, firstname.lastname@example.org. Read Steve Levy's Reports — More Here.
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