Friday, June 19, 2020

Part I

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Supreme Court Decides on DACA Case: Court Blocks Executive Order That Overturned Another Executive Order

By now most Americans know to expect a flurry of decisions from the United States Supreme Court in the middle and the end of June. July traditionally starts the summer break for the Supreme Court. And so even as the court’s year comes to an end—oral arguments and the new session of the court will begin in the Fall—the court tends to hand down not only a large number of decisions in June, but very significant decisions. There’s all kind of speculation about that for one thing, even though, for example, in the case of the LGBT decision that was handed down related to non-discrimination law on Monday, what I believe will be a very long-term, very impactful, very damaging decision, the Supreme Court had held that decision, almost assuredly, for release because the oral arguments were held back before the end of 2019.

Why would the court do that? Well for one thing, it tends to raise suspense. It also tends to focus the nation’s attention, but it also means that the justices are going to leave town before the fury that may follow some of these decisions. It may be that this practice of the court goes back to the fact that the court at least hopes that some of these decisions will not be so politically intensive when it comes back for the new court session in the Fall.

But in any event, we have the fact that yesterday another major decision was handed down by the nation’s highest court. This one having to do with DACA, with immigration law, and with a policy that is now in place due to an executive order—more specifically, an executive branch memorandum put into effect by President Obama in 2012, specifically in June of 2012. There is a huge background to this story that is really important, but in the foreground, the decision stands, as of yesterday, a 5-4 decision against the Trump administration’s cancellation of the DACA program.

That cancellation was by action of the Trump administration. And it had been an issue that President Trump had raised during the course of the 2016 presidential campaign. The 5-4 decision against the administration came because the chief justice of the United States, John G. Roberts Jr., sided with the four traditional liberals on the court to rule that the administration, that means the Trump administration, had provided an inadequate rationale for canceling the Obama administration’s policy. Well, at first glance, the huge question is, what business is it of the Supreme Court of the United States to decide which executive order by which president on the same issue gets to stand? That’s a crucial issue and to that we will return.

But the larger issue of the background to the policy known as DACA for Deferred Action for Childhood Arrivals, it’s political, it’s moral as are so many issues in the United States. The policy had to do with young people who have been brought illegally as children into the United States of America. Had they been born in the United States, they would have been United States citizens, but they weren’t born here nor were they brought legally here. They were brought to the nation illegally, though they were minors, often at that time, very young children when they were brought.

The moral issue had to do with the fact that there were so many people in the United States, still by many measures, by polling, a majority of people in the United States, said that these young people, who had not broken any law by their intention in coming to the United States, should be allowed to have some status that would allow them to remain. You’ll notice that the first word in that acronym DACA is “deferred”—Deferred Action for Childhood Arrivals. The DACA policy, which was never adopted by Congress, but was put into place by an executive order of President Obama did not settle anything long term. Instead it simply provided a deferral of any action to remove those young people who have been brought to the United States illegally by their parents.

President Obama and others would later initiate what they called the Dreamers Act, referring to these young people as dreamers, meaning that they were here and wanted to be a part of the American dream, but that act never passed approval in both the House and the Senate and the action of the Supreme Court yesterday simply returns to the status quo ante of President Obama’s executive order. It does not provide any long-term residency or citizenship for those covered by the DACA policy.

Now, one of the huge issues behind this is America’s immigration policy. By almost any estimation, it is badly broken. It’s been broken for a very long time and the nation’s immigration policy has always been controversial. And by saying always, I mean, always, for nearly the entire experience of the United States as a nation. In the last half of the 20th century, there were several pieces of legislation, but two in particular, one in the 1970s and one in the 1980s that sought to redefine America’s immigration system. But a comprehensive immigration reform has really never been successful in the United States. And one of the reasons is that the United States is in a position which really is not morally clear. It’s not politically clear, nor is it logically clear. Now let’s just speak about some of this confusion.

What do I mean by saying it’s not clear? Americans say that they want secure borders—by the way, that is definitional as a requirement for any nation—they want definite borders and they want a very clear, just, and equitable immigration policy that serves the needs of the United States. That’s very clear. But Americans are extremely unclear about how that is to be translated into law. That’s one of the reasons that Congress has demonstrated its ineffectiveness again and again in its failure to address immigration in any honest way. Much of our economic system, and especially the agricultural sector, so central to the United States and essential for the society, requires a large number of persons to be in this nation as temporary workers at least, who are not on the path toward citizenship or long-term registry.

There is no adequate legal system in the United States right now, even to define this. And so America tends to move along of two minds with this inconsistency, saying we want only an immigration system that is clear and legal. We want to have national priorities established when it comes to immigration, visitation, residency, much less citizenship. We actually want an economic system and we want an agricultural sector that at this point requires a fairly large number of people to come into the United States temporarily, but we don’t have an adequate system and of course there have been millions and millions of persons who have come into the United States and not left. And we’re talking about, well over 12 million people over the last several years. And this was after there had been supposedly a comprehensive immigration settlement that would secure the borders and limit what has been called illegal immigration or the entry of unregistered persons into the United States.

The United States Congress, once again has demonstrated its absolute, abject, cowardice and incompetence in dealing with this issue for years. And that’s because it is a political hot potato. And that’s because both the Republicans and the Democrats will have to tell their own base what the base will not want to hear. No nation should apologize for having an immigration policy that is in its own national interests. That’s why a nation exists. And the definition of a nation, the very experiment of a nation, only works if citizenship is defined by the nation and doesn’t include everybody on the face of the planet who might want to come or might want to claim that citizenship. At the same time, the economy of the United States and a falling birth rate means that we need an infusion of many people into the United States of America, but the American people and the American Congress have been yet unwilling to define exactly how they want that immigration policy to be constructed.

And furthermore, there’s very little evidence that the American people or the American government have much will to be consistent in the application of such an immigration policy, if there were to be some kind of miraculous courage that would appear in the United States Congress and the competence to deal with such an issue. It’s not clear that the American people would like it or would keep it once it was in place. Furthermore, any restrictions upon immigration require the coercive power of the federal government. And one of the things we see is that even many of the people who say they want to have a very secure border and they want no one to be allowed to stay in the United States who has not gone through the legal immigration process, the fact is the very same people appear to be unwilling for the federal government to use coercive force to do much about it.

Over time, the conservative side in the United States debate has had a more coherent and consistent policy. The left’s policy effectively often comes down to no borders, no immigration policy. It’s basically an abdication of national responsibility. And here is another quandary on the American left, particularly as represented by the Democratic party. As we’re going to see on another issue today on The Briefing, that party is in the position of being incapable of pleasing its own base on this issue, because any policy will be more restrictive than some, now the driving energy in the Democratic party, will allow.

Now you might think that this particular issue, hard as it is for American immigration policy, would be easier than many others to address by legislation, going through the normal political process, which would involve Congress taking responsibility, demonstrating competence, and then having the president of the United States sign the bill into law. When it comes to these particular young people, and young in this case goes all the way up to 38, remember the policy was put in place in 2012, it appears that a majority of Americans want to find some way for them to be allowed to stay. Or at least the surveys and polling would indicate a majority of Americans don’t want, at present, to send them back. They want to find some way of dealing with these young people that is fair.

And as you look at this, you recognize that the stipulations of the DACA policy from 2012 actually define what even most conservatives would identify as being in a national interest immigration policy. The young people have to have been brought here by no act of their own. They had to be of a certain age when they were brought into the United States, which means they’re not responsible for the illegal entry into the United States. They also have to have avoided criminal activity. They have to have a job, or they have to be in education, or they have to have joined the American military. Those are pretty significant stipulations. And the DACA provision only gives them two years of continued deferment in the United States. They can apply for another two years and at this point for two years after that. Because there is no particular conclusion to this policy. The DACA policy put in place by President Obama in 2012, does not grant these young people, as they are defined, any kind of permanent status.

President Trump himself has repeatedly, at at least sometimes, indicated that he wants to find a way for the dreamers, as they’re called, to be allowed to continue in the United States, but the issue has been at a political impasse. There’s really very little likelihood that the president will sign any such bill, nor frankly, that the Congress will present him with any such bill, at least when you’re looking at the 2020 presidential election before us.

Part II

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The High Court Continues Its Recent Usurpation of the Political Process

But there are other huge issues behind this. And one of them has to do with the question of the constitutionality of President Obama’s executive action in 2012. Now, the case could be made that the president had no constitutional authority to render any such policy. The president in this case would be President Obama. And the first witness we would bring about the unconstitutional nature of his action would be President Obama, who from 2008 to 2012, argued that he had no constitutional authority to affect any such policy. And the date in which he did so, against his own advice that he had no constitutional authority, to do so is not coincidental. It was June the 15th of 2012. That meant when he was running for reelection. In the course of the campaign for reelection in 2012, he did what he said before he had no constitutional authority to do. But he did it, it was very popular in his own party.

President Trump, when he acted to rescind the executive order of the Obama administration by another subsequent executive order, provided only the rationale that President Obama had acted unconstitutionally. So as you look at the decision of the Supreme Court handed down yesterday, you had a 5-4 majority on the court say that the president, or the Trump administration, had acted without a sufficient rationale when it said that President Obama lacked the constitutional authority to put the program in place. Now, as you’re considering this action by the Supreme Court, recognize two critiques that are extremely important.

Justice Clarence Thomas, joined in his dissent by Justices Samuel Alito and Neil Gorsuch, said of the majority’s opinion, “Today’s decision must be recognized for what it is, an effort to avoid a politically controversial, but legally correct decision. The court could have made clear,” said Justice Thomas, “that the solution respondents seek must come from the legislative branch. In doing so,” this is extremely important, “in doing so,” said Justice Thomas, “it,” meaning the court’s majority, “has given the green light for future political battles to be fought in this court rather than where they rightfully belong, the political branches.”

The political branches—we have three branches of government, but they are not supposed to be three political branches. They’re three constitutional branches. But two of them are elected, the executive branch headed by the president of the United States as the nation’s chief executive and the legislative branch, the House and the Senate, every single member elected. By definition, those two are the political branches. All legislation is to emerge from the legislature and executive authority is vested in the president of the United States, political branches, but not the Supreme Court of the United States.

But Justice Clarence Thomas got right to the issue when he said that the court’s decision was political. It really wasn’t constitutional. It really wasn’t legal. But Justice Clarence Thomas said that the majority’s opinion here was political and it sets up the court now to be the political arbiter of issues that are not within its authority. Justice Thomas had gone on to say that President Trump’s action was legally correct. There may be those who agree or disagree with it politically, but political questions are not supposed to be settled by the Supreme Court of the United States. But that problem takes us back to what we had to discuss earlier this week, when it came to the more important action long term in the United States, related to the interpretation of the Civil Rights Act of 1964.

In that decision, a majority of the justices in a 6-3 vote, gave a sweeping victory beyond anything that had even been imagined by the LGBTQ community. But the bottom line is that President Obama was right in his first term when he said that the president of the United States lacks the constitutional authority to issue an executive order that was on its face in conflict with existing law, passed by Congress and enacted by the signature of a previous president of the United States. Presidents of the United States are to execute the law. They do not have the authority to act in violation of laws duly passed by Congress and signed into law.

The decision by the court’s authority yesterday then throws the entire question into limbo in more than one way. For example, what exactly now is the status of the young people covered by the Obama administration’s policy of 2012, the DACA policy? The answer is they are not now subject to immediate deportation. What is their longer term status? No one knows. The decision doesn’t settle the issue and there is no existing legislation. It’s two years at a time until something changes.

The second critique of the court’s decision to which I want to point, came from outside the court, but from within the United States Senate. And it came from Arkansas, United States Senator Tom Cotton. He said, “It cannot be the law that what Barack Obama has unlawfully done no president may undo.” A very clear statement in itself. He then went on to criticize pointedly the chief justice of the United States, condemning his actions as political. And he went on to suggest that if the chief justice wants to be a political officer, he should run for office. “John Roberts again postures as a Solomon who will save our institutions from political controversy and accountability.” Senator Cotton went on to say, “If the chief justice believes his political judgment is so exquisite, I invite him to resign, travel to Iowa, and get elected.” Cotton went on to say, “I suspect voters will find his strange views no more compelling than do the principal justices on the court.”

Now, I think it’s fair to say that Senator Cotton was rather exercised by the courts ruling and especially by the fact that the chief justice of the United States, appointed to that role by Republican President George W. Bush, had sided with the courts liberals, again. But the deeper issue here really is constitutional. If a president acts unconstitutionally and a subsequent president acts to reverse that action, how can the second action be unconstitutional or contrary to law?

This question is entirely apart from the question of what Americans should rightly decide to do with the people who are covered by the DACA policy. That’s a different question. That’s the kind of question that Congress should consider. And as a matter of fact, that is the kind of issue upon which Congress has the constitutional responsibility to legislate. But what we see increasingly is what I referred to at the end of last week and lamentably have had to turn to repeatedly this week, and that is what is rightly defined as the Supreme Court of the United States and beyond the Supreme Court, the federal judiciary, usurping the political process. That has been driven especially from the political left in the United States that could not gain legislative victories on issues like abortion rights and other issues and instead—same sex marriage is another example—went to the courts in order to gain in the courts the political ends they could not gain through politics.

Part III

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The President Intends to Release New List of Potential Supreme Court Nominees: Why a Democratic Candidate Likely Won’t Do the Same

But as the week comes to an end, it’s fair to say that Donald Trump, the president of the United States, is quite frustrated with the United States Supreme Court. And even yesterday, he announced that he would be, in the course of this campaign, releasing another list of candidates from which he would choose future justices of the United States Supreme Court. He did this back in 2016 and almost undoubtedly, it had a lot to do with support for his election, especially amongst the conservative base. That base is understandably shaken by the decision that was handed down on Monday, that included Justice Gorsuch writing the majority opinion, a Trump appointee, and joined in that case by the chief justice, a Bush appointee. Now the Bush appointee chief justice has done so again. But the fact is that even though there is great disappointment and legitimate frustration on the part of conservatives and the president with the court in these cases, the reality is that the alternative would be the addition to the judiciary and the Supreme Court of justices who would have an actively liberal position. That raises another issue.

Should we expect a similar list coming from the now almost assured Democratic nominee and Democratic candidate for president former Vice President Joe Biden? Should we expect that he will produce a list for his party’s base much like President Trump has produced a list and says he will, again, for his party’s base? The answer is almost assuredly, not. Why? Well it is because conservatives are far more united in what they’re looking for in a justice of the Supreme Court or a federal judge than are liberals. The fact is, and this is just a blunt political fact, if the former vice president as the Democratic nominee were to produce a list of judges from which he would choose future justices of the United States Supreme Court, the critics on the Democratic left would basically attack every one of those names as being insufficiently liberal. That’s the way the game works on the left.

Evidence of that, by the way, came in the course of the 2016 presidential election. When the issue of the Supreme Court and nominations to the Supreme Court came up in a debate between then candidate Trump and then candidate Hillary Clinton, carrying the Democratic nomination, the former secretary of state, the Democratic nominee, said in summary that she would appoint and would only appoint justices to the Supreme Court who would vote to uphold Roe v. Wade and any challenge to abortion rights. So she went right to the end result, not much argument about the interpretation of the Constitution. That’s one of the main differences between the kind of judiciary process that will come from the Democratic party and the kind that comes from the Republican party.

I’m one of those on the conservative side, who has had an extremely disappointing week when it comes to the Supreme Court of the United States. I am very disappointed. I am extremely frustrated. But of course the alternative is understanding that the courts, the federal courts and the Supreme Court, would be filled otherwise by those who would have been nominated or appointed by the former Secretary of State Hillary Clinton in keeping with what she said she would do in the 2016 race. And the alternative right now would be those judges and justices who would be appointed by Joe Biden as president of the United States. And he would represent a party that had moved even further to the left, even since 2016. So we really are looking at two very stark alternatives.

There are so many other important issues to which we will turn next week, but this brings to a conclusion this week’s edition of The Briefing, and thanks for listening.