Obama Hits a Legal Roadblock, 'Normal Order' – McCarthy on Shutdown

By Scott W. Winchell, SUA Editor

A judge in Texas has put the brakes on the implementation of Obama’s unilateral orders which were set to begin tomorrow to aid states that are challenging that action in court. People like Cass Sunstein are furious.

This could effectively stall Obama for a while and Andy C. McCarthy explains why below. We only hope the appeals court does the right thing about this ruling.

But first, on Sunday, Chris Wallace interviewed John Boehner and it got heated. The subject of the interviewed centered on the possible closing of the DHS, despite recently elevated fears we all rightly have concerning terrorism in general, and ISIS in particular. We say bunk, and agree with McCarthy.

Here is a video of that exchange at Fox News:

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But once again, Wallace, like his more liberal counter-parts at other news outlets, he kept accusing the Republicans, the Tea Party Caucus, and Boehner of once again shutting down government. The knee-jerk reaction to blame the Republicans for employing their only real weapon against Obama’s unconstitutional edicts simply misses the point on so many levels and Wallace just does not get it, nor does George Will.

It’s about the purse-strings all, not politics from the right, they are only representing the people’s views and votes – what Obama did was not only illegal, it was just another case of politics over policy, over reach, and a petulant Democratic Party and President not getting their way.

The President and the Democrats know this all too well and despite the legislative process, they politicize this immediately and cast the usual aspersions that the Republicans are controlled by the Tea Party and they hate immigrants. Instead of assailing the President for his illegal and unconstitutional moves, they all castigate the only ones operating under ‘normal order,’ Constitutional, balance of power, order.

To his credit, Boehner repeatedly reminded Wallace that the House was doing its constitutional duties, had already done its work, and that it was now up to the Senate. At one point, he even had to reiterate that he is the Speaker-of-the-House and had no control over the White House or the Senate.

Of course that does not matter to the beltway boys, he is the “leader” of the Republican party and should get his people in order – but again, ‘we the people’ have no say in it, even if we voted that way on purpose. Obama is not King, and the Congress is a co-equal branch Ms. Pelosi and Mr. Obama, et al.

Once again, it is the Democrats in the Senate mucking up the works and politicizing an issue because they did not get their way at the polls. They are filibustering the bill the House passed, even though the Majority Leader, Sen. McConnell has brought back ‘normal order,’ something the Democrats had ‘nuked’ in the last Congress under Sen. Harry Reid – the real “do-nothing” hack.

In this Feb. 4, 2015, file photo, President Barack Obama meets with a group of "Dreamers" in the Oval Office of the White House in Washington. A federal judge temporarily blocked Obama’s executive action on immigration Monday, Feb. 16, 2015, giving a coalition of 26 states time to pursue a lawsuit that aims to permanently stop the orders. (AP Photo/Evan Vucci)
In this Feb. 4, 2015, file photo, President Barack Obama meets with a group of “Dreamers” in the Oval Office of the White House in Washington. A federal judge temporarily blocked Obama’s executive action on immigration Monday, Feb. 16, 2015, giving a coalition of 26 states time to pursue a lawsuit that aims to permanently stop the orders. (AP Photo/Evan Vucci)

Even though McConnell invited amendments and proper discussion as is the Senate’s duty, something Harry Reid never allowed, now its those dastardly, cold-hearted Republicans again. So now we have two wrongs and one right – Obama is wrong on his edict, and the Democrats in the Senate are, and have been wrong for a long time on procedure and now again they throw a temper tantrum.

Then there are people like George Will take exception to Boehner and what the House sent to the Senate, a bill sure to be vetoed by the President. Talk about belt-way mentality Mr. Will, you sound like Nancy Pelosi. He thinks they are wasting time, placing further threat on America, and being political – all over the President not getting his way.

Heard of ‘statesmanship’ Mr. Will? If it gets vetoed, is it not the President’s fault shutting things down Mr. Will? He was the reason the last time, but that did not matter, it had to be the Tea Party that last time so now it is again! ‘Same mantra, different day’…or is it the other one; SSDD?

The problem people like Will and the MSM is that the House and Senate are filled by representatives of the people and the States, not appointees of the President. They are doing what they ran for office to do, and the people spoke clearly. But that does not matter to the belt-way types – the people never really matter to them and George Will, though we often agree with him on other subjects, is just flat wrong, and this will by no means endanger the USA further – talking points Mr. Will?

Elections have consequences, remember that mantra when the left was winning? Please read Andy’s great piece:

Obama’s Amnesty Hits a Legal Roadblock

If a Texas judge’s temporary stay against it is upheld, it could be headed to the Supreme Court.

By Andrew C. McCarthy – National Review

Late Monday, a federal district judge in Texas issued a temporary injunction that bars the Obama administration from proceeding with the president’s unilateral decree of effective amnesty for millions of illegal aliens.

To be clear, the order issued by Judge Andrew Hanen of the U.S. court for the southern district of Texas in Brownsville is a temporary stay. It is not a ruling on the merits of the lawsuit brought by 26 states that claim they will suffer profound financial and other damage from the president’s lawless executive action — an action that Obama himself many times conceded would be lawless before he finally took it late last year.

Fox New's Chris Wallace interviews Speaker of the House John Boehner on Sunday, Feb. 15th.
Fox New’s Chris Wallace interviews Speaker of the House John Boehner on Sunday, Feb. 15th.

Today, the Justice Department will seek an emergency order from the Fifth Circuit U.S. Court of Appeals to block Judge Hanen’s injunction. There is a good chance the Justice Department will succeed, at least temporarily. If the Fifth Circuit blocks the injunction, that, too, would not be a ruling on the merits of the case. It would just mean a return to the status quo that allows Obama to proceed with the implementation of his amnesty decree.

Andrew C. McCarthy
Andrew C. McCarthy

I imagine we will know by late this afternoon whether the Fifth Circuit will set aside the district court’s injunction.

Judge Hanen’s order would temporarily prevent the Obama administration from implementing the executive action — in particular, the issuance of positive legal benefits, like work permits, for illegal aliens despite the lack of statutory authorization. The stay would also allow Judge Hanen a chance to issue a final ruling on the merits of the case. Again, he has not at this point conclusively ruled that Obama’s executive amnesty violates the Constitution or other federal law.

To justify issuing the stay, however, he had to decide that the states that brought the lawsuit had demonstrated a likelihood of success on the merits. That is, in Hanen’s judgment, they have shown that they probably:

  1. have standing to sue,
  2. will show that Obama violated the law, and
  3. will suffer concrete harm from the violation (particularly economic harm).

The big question in the case is standing: Is the case properly brought by the states? If the Fifth Circuit, on an emergency appeal of the stay by the Justice Department, decides there is a likelihood that the states do not have standing, then it will vacate Judge Hanen’s stay.

Judge Andrew Hanen of the U.S. court for the southern district of Texas
Judge Andrew Hanen of the U.S. court for the southern district of Texas

The appellate court could find a probability that standing is lacking because, for example, federal jurisprudence holds that immigration is mainly a federal responsibility, or because the harm the states say they will suffer from the executive amnesty is too speculative. (Again, note that we are talking about “likelihood” and “probability” here because these are preliminary, predictive determinations. The case has not been fully presented and ruled upon at this point.)

If the Fifth Circuit were to vacate the stay, that, again, would not be a ruling on the merits of the case. It would simply revert matters to where they stood before Judge Hanen’s order on Monday, meaning the administration could move ahead with its plans while we await a final ruling on the merits from Judge Hanen.

If, on the Justice Department’s emergency appeal, the Fifth Circuit were to decline to disturb Judge Hanen’s stay, there are at least three possibilities:

  1. the Justice Department could appeal Judge Hanen’s stay to the Supreme Court;
  2. the administration could accept the decision and hold off implementation of the executive order while waiting for Judge Hanen to issue a final ruling (which, all signs indicate, will go against the president); or
  3. the president could do what he often does with statutes and court decisions that interfere with his agenda: simply ignore the judicial stay and begin implementing his amnesty decree.

I would bet on (1), an appeal to the Supreme Court. I do believe that Obama is inclined to (3), the lawless route, if all else fails. Obviously, however, the president would rather win in court if he can. That necessitates moving ahead with the judicial process while there are still rounds to play. The administration has a decent chance of getting the stay vacated in either the Fifth Circuit or the Supreme Court.

Even if that fails, and Judge Hanen, as expected, renders a final decision against the president, the administration has a decent shot at getting such a ruling reversed by the Fifth Circuit or the Supreme Court. I expect the president to play this out. It may take many months, at least, and during that time there is a reasonable chance that some tribunal will lift the stay and allow him to begin implementing the amnesty pending a final appellate ruling on the merits.

This underscores what I have been arguing for some time. The courts are a very unlikely avenue for checking presidential lawlessness. The proper constitutional way to check the president’s executive order is for Congress to deny the funding needed to implement it. That is what Republicans in the House have done, by fully funding the lawful activities of the Department of Homeland Security (DHS) but denying the funding for the unlawful executive amnesty.

Democrats are blocking that legislation in the Senate, in the hope that, as the budget deadline approaches, the pro-Obama press (with regrettable help from George Will and Senator John McCain, among others) will convince the country that it is somehow the Republicans who are “shutting down” DHS.

George Wll

On that score, I will briefly repeat what I’ve contended before:

  • The fact that politicians hang a sign that says “Homeland Security” on a dysfunctional bureaucratic sprawl does not mean that denying funds to that bureaucracy would harm actual homeland security in any material way.
  • We have a DHS only because of typical Beltway overreaction to a crisis — the need to be seen as “doing something” in response to public anger over the government’s misfeasance prior to the 9/11 attacks.
  • Homeland security in the United States is more than adequately provided for by the hundreds of billions of dollars that continue to be spent each year — and that Congress has already approved for this year — on the Justice Department, the FBI, the 17-agency intelligence community, the armed forces, and state and local police forces.
  • We did not have a DHS before 2003, and if it disappeared tomorrow, no one would miss it.
  • The agencies in DHS that actually contribute to protection of the homeland could easily be absorbed by other government departments (where they were housed before DHS’s creation).
  • Under Obama, the immigration law-enforcement components of DHS are not enforcing the immigration laws. Why should taxpayers expend billions of dollars on agencies that do not fulfill, and under this president have no intention of fulfilling, the mission that is the rationale for the funding?

In any event, as we await the next round in the courts, the speedy and certain way to stop a lawless president is to deny him the money he needs to carry out his designs.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.