Appeals Court says no to Obama’s executive amnesty

By Dan Calabrese

Much to the surprise of a president who is used to doing whatever he wants, regardless of what the Constitution says about limits on his authority, the judiciary actually did its job yesterday by putting a stop to Obama’s executive order granting blanket amnesty to entire classes of illegal aliens.

Obama now has only one option left, and that’s an appeal to the Supreme Court. Actually he does have another option, and it might be one he finds attractive – to simply ignore both Congress and the courts and refuse to comply. That’s the president we know! But there’s no question after yesterday that he’d be acting way outside his authority if he did so:

The 2-1 decision by the 5th U.S. Circuit Court of Appeals in New Orleans to uphold a May injunction deals a blow to Obama’s plan, opposed by Republicans and challenged by 26 states.

The states, all led by Republican governors, said the federal government exceeded its authority in demanding whole categories of immigrants be protected.

The Obama administration has said it is within its rights to ask the Department of Homeland Security to use discretion before deporting nonviolent migrants with U.S. family ties.

The case has become the focal point of the Democratic president’s efforts to change U.S. immigration policy.

Seeing no progress on legislative reform in Congress, Obama announced last November he would take executive action to help immigrants. He has faced criticism from Republicans who say the program grants amnesty to lawbreakers.

In its ruling, the appeals court said it was denying the government’s appeal to stay the May injunction “after determining that the appeal was unlikely to succeed on its merits.”

At issue here is a serious twisting of the word “discretion.” Prosecutors have always had the discretion not to pursue certain cases, either because the evidence wasn’t strong enough or because the offense in question didn’t seem worth the resources that would be required to seek and obtain a conviction. Obama’s trying to call what he did “prosecutorial discretion,” but in fact, what he wants to do is refuse to enforce the law entirely for a whole class of people. That is a direct violation of his oath of office, and he does not have the authority to do it just because he got frustrated that Congress wouldn’t change the law as he preferred.

I’d like to say Obama is also very unlikely to succeed at the Supreme Court level, but I guess we never know what Justice Anthony Kennedy is going to do. (Chief Justice John Roberts seems pretty reliable when the case doesn’t involve ObamaCare.) But assuming the Supremes uphold the Fifth Circuit Court of Appeals ruling, the question then becomes whether Obama is willing to ignore the judiciary just as brazenly as he ignores the legislative branch. Generally he conducts himself as though the separation of powers is to be respected only to the extent it’s giving him everything he wants. And when it doesn’t, he declares himself a hero for having tried to work with the other branches and then announces his intention to act on his own.

If Obama’s DHS and ICE actually start enforcing the law once they’re out of appeal options, that would certainly go against their pattern to date. Even so, Antonio, Felipe and Miguel might be feeling awfully nervous right about now:

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