Law Review Article

To all my Ratburger friends, I was published in an online law journal. You can find the article here:

https://www.natlawreview.com/article/sanctuary-federalism-affirming-separation-powers-between-states-and-federal

I am going to warn you all now, you probably won’t agree with it, but I still think you will all enjoy it and find something to think about.

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Government Structural Failure

Not only are the roads, bridges and ancient municipal water supply lines in major cities crumbling, but so is the structure of the federal government. Let’s recall the history of the so-called “dreamers.”

The legislature, in its wisdom, did not enact a proposed law which would have allowed minor children (now adults) of illegal immigrants to remain, legally in the US. Obama then made a rare, truthful statement: he said he lacked the executive power under the Constitution to implement such a measure. Then, he went ahead and did it anyway. Not only did the fawning MSM not point out the contradiction, they applauded the action.

Along comes President Trump who points out that Obama’s order (deemed to be merely an executive decision fo forego enforcement, notwithstanding the fact that such sweeping measures do not comport with traditionally-respected and necessarily narrow and limited decisions to limit enforcement of any particular law) was clearly un-Constitutional. Trump indicates he plans to rescind the executive order in six months and asks the Congress to do its duty and enact a proper law to ameliorate the plight of this designated unfortunate group of victims (whose actual number is undoubtedly much larger than the 800,000 advertised). The Dems play politics and refuse to cooperate, as Trump insists – sensibly – that the price for enactment of the “Dream Act” is funding for a long-overdue border wall. And now, Trump’s recision of Obama’a illegal executive order has been blocked by the judiciary – by a federal court judge (a Clinton appointee, unsurprisingly).

How on Earth does a member of the judiciary presume the power to overrule the executive – a co-equal branch of government, equally-empowered to make judgments as to the propriety of its own executive orders? Similar actions were taken by courts as to temporary executive bans on immigration from certain certain countries. The Supreme Court eventually undid the vast majority of that (and the orders became moot as time ran out, so the issue was never fully joined). Politically, it may have been wise to not fight that fight as a Constitutional power struggle – even though it surely was one.

This fight, however, may be worth fighting as a matter of Constitutional principle. Sometimes, a “Constitutional crisis” is necessary to preserve the structural protections against tyranny, as was intended by the separation of powers. I suggest a case can be made for Trump to ignore this court, putting it on notice that protection from judicial tyranny is every bit as important as against executive tyranny.

Here, the lines are clearly drawn. Recision of this executive order cannot rise to the level of requiring judicial intervention as a fundamental Constitutional matter, since it merely represents two different policy choices by two different executives.  It is the executive, after all, and not the judiciary which is charged with protecting our borders and administering immigration laws (which have been so egregiously ignored). The discretion of the executive is broad, indeed, in this regard and courts have traditionally deferred to it in matters far less clear than this one. Again, this is simply two different answers to the same executive policy question (and the first answer was un-Constitutional to boot).

It is time to restore the rule of law in this area – and that is the responsibility of all branches of government, not just the judiciary. I believe this is a teachable moment, if Trump has the guts. And it will take guts to tough this one out. The courts are out of control. They need to be put back in their proper place. In the absence of legislation, Trump should ignore the court’s orders and simply re-initiate enforcement actions against all categories of individuals who have no legal right to be present in the US. What a shocking notion that is. It will suck all the oxygen out of everything else and this, IMO, is a necessary fight; Trump is the guy to do it. I would look forward the MSM’s nuclear self-immolation.


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