Confused about what happened in the Supreme Court this past week on the DACA ‘kids’?
Ken Masugi writing at American Greatness tells us how bad the decision is for us that a President is bound to an illegal decision made by a previous President simply because the new President calling foul didn’t dot all the ‘I’s and cross all the ‘T’s. (Hat tip: Paul)
(Of course questions remain about whether the Trump Administration was screwed by sloppy legal work on his side, or intentionally sabotaged by government lawyers who crafted its case.)
Just as the infamous Dred Scott case in 1857 would have extended slavery throughout America, so Thursday’s decision in Department of Homeland Security v. Regents of the University of California threatens to make the machinations of bureaucratic government supreme and unrepealable.
Chief Justice John Roberts’ 5-4 court opinion strengthens the grip of the administrative state—the interlocking network of bureaucracy and political correctness—over the democratically elected branches that are supposed to make us a nation of self-governing citizens.
The Supreme Court, in a seeming conspiracy with lower federal courts, has tilted the table against the elected president and his appointees in favor of bureaucratic governance.
As dissenting Justice Alito pointed out, “the Federal Judiciary, without holding that [the Deferred Action for Childhood Arrivals program] cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.” The judiciary, far from clarifying and drawing bright lines, has effectively become part of the bureaucracy.
Admitting that the equal protection or due process rights of the children of illegal residents—a.k.a. “the dreamers”—were never in jeopardy, Roberts nevertheless concluded that the Trump Administration’s repeals of unlawful Obama Administration actions are illegal because the appropriate provisions of the Administrative Procedures Act were not followed.
In his dissent, Justice Clarence Thomas (joined by Justices Samuel Alito and Neil Gorsuch) noted that as a result of this ruling, the Department of Homeland Security “is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”
Despite the illegality of DACA and other policies, which were never laws to begin with, there remains the question of how we are to be free of arbitrary and capricious bureaucratic edicts and decrees.
To repeat: the error is the most basic separation of powers error possible: The court confused itself with the Congress and began making policy demands of the executive…
Aided by a life-tenured Court, the administrative state may have found its Dred Scott case in DHS v. Regents and thereby the means for making itself the true ruler of America.
Whether this will portend a new civil war over whether Americans are subjects or citizens is an open question. For one thing, it isn’t a war unless citizens recognize they are being fired upon.
And, if there was only one reason (there are many!) to get out there now and work to assure that President Trump is reelected remember this—the President appoints federal judges and Supreme Court justices!