Monday, July 7, 2014

DREAM Act Birds Come Home to Roost

This post is not on the question of whether America is better off or worse for its sieve-like southern border.  It's not about whether all persons not lawfully in the US should be rounded up and deported. It is about the dangerous condition in which our Republican House of Representatives has left the Nation by ignoring President Obama's decision to usurp the exclusive power of the Congress to provide a uniform law of naturalization.

Obama's imposition of the provisions of the DREAM Act -- by executive order because Congress did not approve it -- should have resulted in impeachment. Instead, Congress sits idly by, leaving the States to the various depredations that will follow.  This blog post is about one of those depredations:  a decision by the US Court of Appeals for the Ninth Circuit holding that Arizona is likely violating the equal protection rights of individuals who have obtained deferred action under Obama's unconstitutional Executive Order.

In an appeal from a trial court's decision refusing to interfere in Arizona's enforcement of its motor vehicle licensing laws, the US Court of Appeals for the 9th Circuit has concluded that Governor Jan Brewer and the State of Arizona are likely violating the equal protection rights of individuals granted deferred action status under Obama's executive adoption (i.e., unconstitutional adoption) of the DREAM Act.

The equal protection violation results from the State's decision, based on the Governor's Executive Order, not to issue motor vehicle operator's permits to individuals whose proof of legal status in the US is based on the documents evidencing the federal government's grant of deferred action.  The State of Arizona does grant motor vehicle operator's licenses to individuals whose proof of legal status consists of documents showing the grant of deferred status under other (congressionally adopted) (constitutional) deferred action programs.

Set aside the question of what to do about unregulated migration into the United States.  Set aside the dispute over so-called anchor babies.  Set aside the question of whether the States should all kowtow to federal standards for their issuance of motor vehicle operator's permits (a peculiarly State function).

Here we have a President that has decided to act like Congress has passed a law that it hasn't.  There is no law on the book adopting the proposed terms of the DREAM Act.  If Congress chose to enact the DREAM Act, the Constitution's terms make Congress's judgment about naturalization beyond the purview of the President.  Congress hasn't enacted the DREAM Act.

Instead, Obama, whose behavior as unitary Executive/Legislative/Judiciary of the United States, has simply issued an executive order directing that ICE and DHS act as though Congress had enacted the DREAM Act.

From that unconstitutional act, we proceed to the preposterous decision of the 9th Circuit.  Arizona refuses to pretend that Obama's Executive Order has the force and effect of federal law.  So it concludes for itself that the use of documents proving deferred action under the unadopted DREAM Act does not satisfy Arizona's standards for proof of lawful presence in the United States.  On  this determination, the 9th Circuit bases its conclusion that Arizona likely violates the Equal Protection rights of those residing in Arizona that have obtained deferred action status from this Administration.

Did you follow all that?

Summed up:  Obama imposed an executive order (unconstitutionally) in an area of federal law and policy that belongs exclusively to Congress (naturalization).  Arizona, which, like each State, has the public health and safety justification to impose licensing requirements and does so, has established a standard for proving lawful presence in the US that does NOT accept the exercise in unconstitutional power undertaken by Obama.  The 9th Circuit then concludes, not that Obama is acting illegally and Arizona is not bound by his unconstitutional actions, but that Arizona is likely violating the rights of those whose legal presence in the United States has not been obtained by Act of Congress.

We are three days past Independence Day.  I hope, nonetheless, that you will recognize that usurpation of legislative authority by King George III constituted the principal basis for our rebellion against English tyranny.  Obama's tyranny is no less offensive to the republican self-government to which our Declaration aims, our State Constitutions frame, and our National Constitution commits.