IANAL, nor do I play one on TV. But here’s my understanding of where I think the law stands regarding this quack commie judge in NY who ordered that the Trump administration had to not only halt the dismantling of DACA but must steam full steam forward in implementing it (see Washington Times Article here).
So, let’s see if I have this straight. I am not venting or ranting. At least I think I’m not. This is what the law seems to me:
- Executive orders are not laws. They were not voted on, they are directives by which a President seeks to either implement current legislation, or (getting to more shaky ground) to shape bureaucratic policy within existing law but with his own spin on it.
- It seems to me that the only time any XO might come under judicial review is when an XO is arguably in conflict with the text or clear meaning of the law.
- It also seems to me that an XO, whether or not it passes or would pass muster under #2, can be canceled or made null by any president in the future, including the same president who issued it.
- Following the logic of #3, it seems the absolute height of judicial hubris, overreach, and a dead solid out-of-bounds, no f-ing way act for the judiciary, at any level, to order a president that he cannot cancel a previous XO. Under the most extremely generous (to the judiciary) interpretation, they MIGHT, in the merest form, have a minor, minor say-so in the manner in which the XO is canceled. And that area would be as it regards to standing legislated law.
The above I believe to be a fair interpretation of law regarding executive orders, legislation, and judicial review (which by the way I reject out of hand, but conceding the reality that America accepts Madison v Marbury, let us step past that little land mine).
Now the tie-in to this judge, and at least peripherally relating to Trump’s previous XO’s relating to the so-called travel ban. Along with his flimsy standing to make any ruling, add to it the pretty solid claim (I’ll stop short of calling it slam dunk, because again IANAL), that DACA in the first place is plainly an attempt to subvert existing law, not only in fact, but according to the words of Obama himself. [sidebar: if judges can factor Trumps’ tweets into a ruling (like they did in the travel ban, and I believe in this ruling as well), then they can also factor in Obama’s numerous public statements about DACA, notably the famous “pen and phone” statements as to acting where it was admittedly legislative purview.]
It staggers the imagination to believe a judge has a right to order a president to follow a plainly illegal Executive Order from a previous administration.
How about it, lawyers, legal beagles, and scruffy, Gun-and-Bible clinging civilians like myself?