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Obamacare Suit Might Offer Path to Challenge Immigration Order
I just returned from a week of sun, fun, and politics with the happy National Review cruisers of the Allure of the Seas. One of the frequent topics of conversation (other than favorite Democrat loser on Nov. 5 or the Republican presidential nominee in 2016) was the White House’s coming order deferring the deportation of illegal immigrants. President Obama is flouting his fundamental duty, set out in Article II of the Constitution, to “take Care that the Laws be faithfully executed.” The President can only refuse to carry out an Act of Congress if it violates the higher law of the Constitution – which no one seriously claims is at issue with the immigration laws.
National Review speakers on the cruise, including me, were at a loss on how to oppose President Obama’s violation of the Constitution. Challenges to the White House’s earlier refusals to enforce Obamacare, immigration, and welfare laws have failed. Talk of impeachment may follow the Framers’ original design, but it is politically impossible and self-destructive. Conservatives are trapped because they favor a limited scope for judicial review by the federal courts. Under the doctrine of standing, long favored by conservatives, no individual can bring a claim unless they have suffered a discrete “injury in fact” that is traceable to the government’s conduct and can be redressed by the court. President Obama’s refusal to enforce the law affects us all by violating the Constitution, but it is hard to claim that it harms any individual citizen (it only benefits the illegal immigrant).
But an overlooked lawsuit may offer a path forward to a court challenge to Obama’s coming order. On Sept. 16, West Virginia’s Attorney General Patrick Morrisey sued the President to stop his “administrative fix” to the Affordable Care Act, a.k.a., Obamacare. According to the suit, filed by Elbert Lin (the state solicitor general and former clerk to Justice Clarence Thomas), the Department of Health and Human Services (HHS) illegally foisted its own statutory duty to enforce the ACA’s market requirements on to the states. By passing the buck, the Obama Administration wants to commandeer unwilling States, make them politically accountable (in lieu of the HHS), and create dissonance in federal law on a State-by-State basis. You don’t want federal law to mean one thing in West Virginia and another in Massachusetts. And in the undocumented immigration context, the Administration is threatening to simply ignore federal law.
Regardless of how the anti-commandeering claim (as U.S. Supreme Court cases call it) comes out on the merits, West Virginia’s suit lights the way for a federal court challenge to an Obama immigration order. These Administration abuses injure States, which the Supreme Court has said deserve “special solicitude” in these situations. West Virginia has standing because it has been injured: not only must it spend money and resources to enforce federal law within its borders, it must also bear political accountability brought on by the shift of responsibility from HHS to the state. The harm seems far more imminent and actual than the purported standing recognized by Justice Stevens in the Massachusetts v. EPA (2007), where the Court found injury in fact because Massachusetts might lose land to the rising seas brought on by global warming.
States, whether West Virginia on Obamacare, Arizona on immigration or, in a Republican Administration, Vermont on environmental policy, should have the minimum right to ask federal courts to compel the President to live up to his constitutional job-description: faithful execution of the laws.
Cross-posted at National Review.
Published in General
When the president of the United States announces amnesty for upwards of 5 million unidentified illegal aliens, it will be received, particularly by the Latin American community, as a statement from the patron of the cities of gold.
No amount of legislating or lawsuits will alter the perception of the third world. Nothing short of armed resistance will prevent the flood to follow. Those 5 million will be indistinguishable from the other 30 million or so also here illegally. Will the courts have any hope of determining who is among the 5 million other than a trial in which a pro-Bono left wing attorney will use all the tools at hand?
Sorry John, your faith in the law will be proven too little to overcome the reality of people wanting to advance from the endless cycle of failed nationhood.
John,
Can we get an injuction by the Court to make the President cease and desist from not enforcing the Law awaiting the actual ruling?
Regards,
Jim
I’m hopeful that this approach, allowing the states to sue for the damage Obama’s unconstitutional actions causes them, will be successful in reining in the president. But I’m not confident. As I recall, the justices other than Thomas and Scalia were not that willing to support Arizona in its attempts to protect itself from illegal immigration with SB 1070.
Are you so sure that impeachment is politically impossible? I would agree that it’s impossible today, but we can’t predict what the public mood will be like should Obama go ahead with his executive order and open the border to a flood of illegal immigrants. At some point, people will feel the pain from this. Crime will rise, cities will be burdened with extra homeless, etc.
How far does this have to go before the political will to do something develops with the public? Current polls have only 40-45% support for executive action on immigration. Obama’s favorability is around 40%. If his actions split off too many other voters from his coalition he will be facing a large majority against him.
Can any of the legal mavens here tell if this….
http://books.google.com/books?id=xjGP8ecXx3cC&pg=PA222&lpg=PA222&dq=P.L.+109-58,+%C2%A7334+(2005);+10+U.S.C.+%C2%A77420+note&source=bl&ots=WoiVkFLOJm&sig=CQBTEUzKMzL_7JCxuBCs8w4RbiM&hl=en&sa=X&ei=dSdlVLmxA4uagwSckIK4DQ&ved=0CB4Q6AEwAA#v=onepage&q=P.L.%201&f=false
can apply here to our Mussolini in the making?
For several decades politicians of both parties have seen fit to violate the constitution when it served their purposes. Granted O. has been more flagrant than most in the past and I find this irritating, but living in a delusional state of thinking Republicans want to do something about it is silly at best. There are 15 million or so illegals in the US. The only question is why. There are three possible answers. The politicians, responsible for inforcing and writing our laws were ignorant of the fact that it was taking place. This is not plausible. The second possibility is that these same politicians were totally incompetent. If this is the case they should resign or refuse their plushy retirements and their lap-dog lawyers should stay silent. Even this group of the arrogant and asinine are clearly not this incompetent. The only believable explanation is that these self-serving politicians and their monied interests want them here. What can the Republicans do? Look in a mirror – they help create this massive monstrosity which is no longer governed by laws but by men. This unconstitutional lunacy did not start with Obama and any Republican pretending it did is as dishonest as he.
So in actuality the checks and balances theory is a myth and the President can do what he wishes within certain political expediency parameters such as the mob removing him. We do not seem to have 3 branches of government working against each other to create wise law as much as 4 (or more) political bodies creating laws as they wish and hoisting them on the citizenry.
What is so sad is after the twin towers were knocked over on 9/11, the Republicans had the opportunity to get a fence built on the southern border and get immigration under control once and for all (especially in regards to the issues of the anchor babies and the visa over-stayers). But as usual, they listened to the Chamber of Commerce and blew it. Generations of hard-working, native-born Americans are going to pay for the Rinos’ short-sighted cowardice and lack of vision.
I’m still operating under the assumption that the framers of the Constitution could never foresee the size and scope (creep) of the USG. To think that 25% of GDP is govt spending is ridiculous in peacetime, but that’s our “new normal”.
It’s a good argument to make, and although evidence is legion it’s hard to point to the one thing that joins all branches of the federal govt, but this much is true: The budget goes up every year faster than inflation. Unfunded liabilities are in the tens of trillions. Congress, despite its general unpopularity, gets re-elected at a very high clip. States have so much of their budgets tied to federal funds that they are now forced to go along with what the USG says or their budgets implode (my own state of Vermont has 35% of its budget from federal funds).
Call it collusion, call it what you will. But “wise” law is nowhere to be seen. Not that I think they should be writing laws as part of their jobs; they should be dismantling what’s been created, by law and by the administrative bureaucracy that seems to stomp quite effectively on the interests of the citizens that put that disaster into being.
I agree. Most commentators and right leaning officials believe that the Clinton template proves beyond any doubt that impeachment causes more harm than good, that the people will be sympathetic to the president under attack.
But most people I spoke to at the time were dismayed by the Clinton impeachment because they thought his offense was only “lying about sex,” and therefore not worthy of serious penalties. We don’t know what the public reaction would be to an impeachment for violating the constitution with amnesty, IRS persecution of innocent taxpayers, the Benghazi coverup, not to mention the non-impeachable offenses of failing to protect the country from its enemies (ISIS, Iran, and Russia) and the Gruberization of the health care laws.
I’ve always thought immigration was the real motivation for this lawsuit, myself. Congressional GOP leadership believes it has to do immigration reform to win over Hispanic voters, but are stymied by a president who cannot be relied upon to enforce the law. Thus the attempt to create a new branch of constitutional law dealing with the question of what happens when the president violates the Constitution, but impeachment is politically impossible.