Washington v. Trump, Texas v. US

A few years ago, President Obama issued major executive orders on immigration. They said, basically, that the Executive Branch would not be enforcing some of the immigration laws created by Congress – the so-called DACA Expansion.

These executive orders were challenged by several states. The 5th Circuit declared them unconstitutional, in large part because of the Take Care Clause of the 10th Amendment. This case is known as Texas v. US.

Now it’s really hard to explain the Take Care Clause, because it’s almost never used in court. But the theory proposed by the states was that the Take Care Clause requires the president to make a good-faith effort to enforce the laws. Under this theory, any official order to hold back on the enforcement of a law is unconstitutional.

This went to the Supreme Court. Since Justice Scalia had died, and not been replaced, the Court only had 8 members. The case came down to a tie: 4-4. But SCOTUS does not use NFL overtime rules. In the case of a tie, the lower court decision is upheld. That’s what happened. The DACA expansion was blocked by the Courts.

Flash forward to Now. President Trump is issuing executive orders on immigration. They’re being challenged by several states. They’re being challenged on (in part) 10th Amendment grounds. That challenge is headed for the Supreme Court. Sound familiar?

Trump’s EOs are creating a very similar legal situation – a dark mirror of DACA. Then it was a Democratic President being challenged by red states, and now it’s a Republican President being challenged by blue states. The Democrats are themselves using the same legal challenge that they fought against – just last year!

Now, this could just be irony. OR it could be the Democrats’ chickens coming home to roost. OR it could be proof that the judiciary really will protect this country from political overreach on both sides – real blind justice, protecting both outcome and procedure, slowing both progress and regress in equal measure, which ought to be celebrated by capslock tweets from us all.

OR it could be that the Republicans set this up perfectly. Maybe they arranged for executive orders that they knew would placate their base but get overturned by the courts. If the orders are upheld, the Trump supporters are placated, and (because we’ve been careful to only ban poor Muslims) few business interests are harmed. And if the orders are overturned, the Trump supporters are still placated because “hey, we tried”, while also the Courts have set a stronger precedent that the Take Care Clause can be used to prevent executive action in immigration. So if, four years from now, President Warren tries to expand DACA again, a) the courts will shut it down and b) the Republicans can say “but this is your logic, Democrats; you can’t have it both ways!”

There’s something I’ve noticed here in Maine under Governor LePage. In general, the Center and the Left want their leaders to believe in things and then to see those things accomplished through action and legislation. The Right are happy if their leaders believe in things, even if they are so politically inept that they get none of those things accomplished. They’d rather be right than get things done. Sometimes I wonder if they might like not getting things done, so they can have something to be mad about. I think that’s what we’ll see when these Executive Orders get overturned: happily angry Trump supporters, PTSDd centrists and liberals, Steve Bannon remaining the Baron of Brinkmanship, and Mitch McConnell smiling like the Cheshire Cat.


~ by davekov on 9 February 2017.

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