….albeit in a case involving the borders of Israel. In a 6-3 ruling, the Court struck down a federal law that had allowed a person born in Jerusalem to have his birthplace noted as “Israel”. The majority opinion was written by…..Anthony Kennedy, who was joined by the usual suspects plus a partial concurrence by Justice Thomas.
The opinion is here. The dissent written by Justice Roberts is scathing (some have already said he did it to gain some absolution for when he upholds Obamacare again in King v. Burwell). But the dissent by Justice Scalia is equally scathing and contains this section from which we derived our supposition that Obama will claim it establishes precedent for how he performs his Executive function in re “immigration”.
That brings me, in analytic crescendo, to the concurrence’s suggestion that even if Congress’s enumerated powers otherwise encompass §214(d), and even if the President’s power to regulate the contents of passports is not exclusive, the law might still violate the Constitution, because it “conflict[s]” with the President’s passport policy. Ante, at 24. It turns the Constitution upside-down to suggest that in areas of shared authority, it is the executive policy that preempts the law, rather than the other way around.
Emphasis on ‘policy’ is ours. Now, this is Justice Roberts’ beef with the majority opinion:
“Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs. We have instead stressed that the President’s power reaches “its lowest ebb” when he contravenes the express will of Congress, “for what is at stake is the equilibrium established by our constitutional system.”
Justice Roberts may be right that this is the first time the Court gave the nod to a direct defiance of an Act of Congress by a President, but it is not the first time the President has abdicated, ignored, or flouted his constitutional obligation and oath of office to “faithfully execute the laws”. So, yes, this is an egregious decision and violates the rule of law. But he has gotten away with it before. The Scalia dissent, with it’s emphasis on the Court’s explicit deference to the “policy” (read ‘preference’) of the President over the preference of the Congress, intimates that it confers upon the President the power of a monarch.
So. In the execution of the Immigration and Naturalization laws of the United States, also involving our relations with foreign countries, and also involving how US policies and actions are ‘perceived’ by other nations, Obama can now claim a precedent was set by the …..’Kennedy/Thomas’…. court. It is his policy to allow the infusion of aliens into this country extra-legally and without due process of law and/or legally-directed administrative procedures.. And further to extend to them benefits large and small, again extra-legally.
How could this Court now rule against him should the inevitable challenge to his actions reach them before his term expires?
We want to reiterate that the majority opinion was written by Justice Anthony Kennedy. Proving once again that the real danger to this country is not from the left-wing extremists, but from the mugwumps who are deferential and congenial to a disastrous fault. And also proving that oaths of office to uphold the Constitution are either a big waste of time or that law schools are an even bigger waste.
As my friend Vassar Bushmills likes to say, the Constitution was written for the Common Man. He is proven correct almost daily in these post-post-modern times. Sometimes hourly.
End note: We didn’t get into the arguments presented by the majority opinion as we were primarily concerned with not the specifics of this case, but the trend of the court. But we will point out one salient example of inexplicable logic. The court goes on at some length about how it is the Executive that has the power to recognize foreign states and foreign governments, receive ambassadors and all that. Had I been a participant in the arguments, I would have asked “Does not the United States government recognize the State of Israel, indeed call it an “ally”? And if it does, should it not then follow that the United States would recognize what it’s capital city is?