The Separation of Obama’s Power An appeals court blocks his unilateral immigration diktat.

Posted By on November 11th, 2015

http://www.wsj.com/articles/the-separation-of-obamas-power-1447200764

Maybe the separation of powers isn’t a dead letter after all. The U.S. Constitution’s core protection against tyranny got a reprieve late Monday when an appeals court upheld a federal judge’s injunction against President Obama’s unilateral immigration order.

A three-judge panel of the Fifth Circuit Court of Appeals voted 2 to 1 that a legal challenge by 26 states has a high probability of success and thus the regulation should not be enforced until the case is decided on the merits. On Tuesday the Administration said it will appeal to the Supreme Court, which means this could be a landmark ruling before Mr. Obama leaves office.

The careful, 70-page opinion by Judge Jerry Smith eviscerates the Administration’s unprecedented claims of executive authority. The Homeland Security Department says it has executive discretion to decide whom to deport, but its detailed marching orders to immigration agents provide for almost no discretion in handling individual cases.

Team Obama also claims it has statutory discretion under the Immigration and Nationality Act, but Congress surely did not intend to let a President unilaterally decide to legalize more than four million migrants in a single willful order. Another White House claim is that Congress has acquiesced over the years in similar legalizations, so the executive has the benefit of precedent, but no Administration had ever tried anything close to a legalization order this sweeping.

The court found that the Obama order imposes substantial costs on the state through driver’s licenses and other services for legal immigrants. While the federal government is responsible for immigration law, it can’t violate the states’ sovereign interest on executive whim, as even President Obama once understood.

In a 2010 Univision interview he explained his inability to pass immigration reform this way: “I am president, I am not king. I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen.” But after his 2014 executive action, he told liberal hecklers that, “What you are not paying attention to is the fact that I just took an action to change the law.” Judge Smith noted in his opinion that the attorney for the U.S. “was unable to reconcile that” presidential remark with the government’s current position.

This Supreme Court is hard to read, but this is no simple case of judicial deference to the executive. President Obama has rewritten law after law in his second term and dared Congress and the courts to stop him. The Justices should take up the dare to protect the Constitution.

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