Constitutional usurper Reagan thwarted again

steve daines

Steve Daines

Sen. Steve Daines, R-Mont., was predictably (the man is nothing if not predictable) pleased by the U.S. Supreme Court’s indecision on Thursday in a case challenging the Obama administration’s immigration policy.

“Too many times during his tenure in office, President Obama has skirted Congress and the will of the American people by using executive action to get his way,” Daines said in a news release.

He added, “The American people, Congress and the U.S. Supreme Court must all continue to push back against the President’s unlawful and overreaching use of executive power and protect the Constitution.”

Now, if you are like me, you haven’t followed this case closely. Apparently, neither has Daines, who has been too busy helping make sure Congress doesn’t get its work done.

When the lawsuit was first filed, I read and heard a number of legal scholars, including some with excellent conservative credentials, argue that the case would go nowhere. Congress has deferred to the executive branch too supinely and for too long, especially on this issue, to expect a court to say the buck stopped somewhere before it hit the president’s desk.

After all, Congress has never provided the budget it would take to do what the law requires: deport all 11 million or so illegal aliens. And Congress would not provide that kind of money in a Trump administration either; we would have to rely on the kindness of Mexico to even get a wall built.

Besides all of that, Obama never disputed the power of Congress, or of a subsequent administration, to overturn his policy. Daines and his Senate colleagues did nothing to make that happen, despite the cruel burdens that current law imposes on his own constituents. Nor did they consider confirming a new Supreme Court justice who could have provided a real ruling on the case rather than a punt to a lower court.

Does Thursday’s non-ruling mean that all those scholars were wrong? Not really. As is pointed out by Marty Lederman, a law professor and former assistant attorney general in the Justice Department’s Office of Legal Counsel, the case really doesn’t turn on the Obama administration’s discretion on how to enforce immigration law at all (this gets pretty weedy, but start here, then go here and perhaps, for true gluttons, here).

Instead, the state of Texas, lead plaintiff in the case, has relied on two other arguments: the meaning of “lawful presence” as determined by former Attorney General Janet Reno, and a policy authorizing illegal aliens to work that was enacted during the Reagan administration.

Yes, the Reagan administration.

Now that we’ve cleared that up, we should expect a corrected news release from the senator that says, “Too many times during his tenure in office, President Reagan skirted Congress and the will of the American people by using executive action to get his way.”

I’m waiting with bated breath.

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