The Patriot Post® · Are We Still a Nation of Laws?

How the Supreme Court rules in the case United States v. Texas may provide the ultimate indication of whether we remain a nation of laws or devolve into a nation of men — headed by a de facto dictator formerly known as the president of the United States.

In 2012, the Deferred Action for Childhood Arrivals (DACA) program was implemented by the Department of Homeland Security (DHS). Part of that implementation included criteria for determining when prosecutors could choose not to enforce immigration laws outlined in the program. Those who qualified were also allowed to apply for citizenship. Two years later, DHS established Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) for parents and lawful permanent residents. Both programs, initiated by Barack Obama, had the same goal based on the same premise: granting de facto amnesty to millions of illegals based on “prosecutorial discretion” as defined solely by the executive branch of the federal government.

(More strategically, Obama knew he risked losing in court. But he got credit for pandering to Hispanics by at least trying to implement amnesty, while any legal loss would save him from angering unions, who don’t want to compete with cheap illegal labor.)

His overreach didn’t sit well with Texas and 25 other states, which filed suit. On Feb. 16, 2015, federal district Judge Andrew S. Hanen ruled in favor of the states, one day before hundreds of thousands of illegals would have begun applying for permits and work protection under the program. A week later, the U.S. government asked Hanen to lift his injunction while it appealed his ruling to the Fifth Circuit Court of Appeals in New Orleans, pushing the laughable argument that such was necessary “to ensure that the Department of Homeland Security is able to most effectively protect national security, public safety, and the integrity of the border.” Hanen denied the request, and also eviscerated the Obama administration for granting three-year periods of deferred action to 108,081 individuals between the implementation of DAPA and the preliminary injunction — and then lying about it.

The administration then asked the Fifth Circuit court to stay the injunction pending an appeal. That request too was denied by a three-member panel on May 26, 2015. It meant the administration could not implement DAPA until the Fifth Circuit ruled on the injunction itself. On Nov. 9, 2015, the Fifth Circuit reaffirmed Hanen’s original injunction.

On April 18, the Supreme Court will hear arguments on the case.

In the meantime, U.S. Solicitor General Donald Verrilli is advancing the argument that the Obama administration has even more prosecutorial discretion to advance this constitutionally dubious agenda. Verrilli claims Obama not only has the power to continue allowing millions of illegals to keep violating immigration law, but also the power to make them eligible for federal benefit programs, such as Social Security, disability and Medicare. Verrilli admits the prosecutorial discretion that enables deferred action “does not confer lawful immigration status or provide any defense to removal,” and that aliens with deferred action status “thus cannot receive food stamps, Supplemental Security Income, temporary aid for needy families, and many other federal benefits.” However, he insists that illegals remain eligible for “earned-benefit programs.” Verrilli stated, “A non-qualified alien is not categorically barred, however, from participating in certain federal earned-benefit programs associated with lawfully working in the United States — the Social Security retirement and disability, Medicare, and railroad-worker programs — so long as the alien is ‘lawfully present in the United States as determined by the [DHS secretary].’”

That would be DHS Secretary Jeh Johnson, who recently asserted the millions of illegals currently residing in America are “not going away,” and are “in effect” citizens. The same Jeh Johnson who told the Senate Homeland Security Committee that “there’s only so much border security you can accomplish” to stem three years’ worth of surges across our Southern border. He said so less than one month after National Border Patrol Council president Brandon Judd told the immigration subcommittee of House Judiciary Committee that the administration had ordered U.S. Customs and Border Protection agents to release illegal immigrants and no longer issue Notices to Appear (NTAs) at deportation hearings.

Thus, despite everything this administration says, illegals continue to flood into the nation.

Last week, 43 U.S. senators filed a friend-of-the-court brief (amici curiae) to the Supreme Court supporting the states’ side of the litigation: “As members of the Senate, amici have an unquestionable interest in protecting the legislative powers that Article I of the Constitution confers upon the Congress of the United States.” Article I states, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The House filed a similar brief.

But who’s kidding whom? One of the most consequential legislative powers vested in Congress is the power of the purse. Yet when it came time during the 2015 budget negotiations to defund the DHS in response to Obama’s amnesty initiatives, the Senate caved first, followed by the House shortly thereafter. They are now relying on the Supreme Court to validate the same powers they themselves abdicated.

“If the president is allowed to go ahead and to do this, and it’s decided that it’s constitutional, then you can send Congress home,” explains political analyst Charles Krauthammer.

And if they got their way, some leftists would have the Supreme Court fill the vacuum. “The possibility of five or six Democratic justices allows one to imagine what might be done in other areas,” fantasizes Erwin Chemerinsky in a column for The Atlantic. “Might the Court find a constitutional right to education and conclude that disparities in school funding violate the Constitution? Might the Court find that the racial injustices in the criminal-justice system violate equal protection?”

No doubt there are plenty of things a leftist-dominated Supreme Court could “discover” in an all out embrace of a “living constitution.”

What the current Court should determine is that Obama’s attempt to write immigration law wholly on his own is unconstitutional. And while most Americans assume eight Justices will decide the outcome due to Antonin Scalia’s death, only seven should be adjudicating this case. That’s because Justice Sonia Sotomayor served as a board member and vice president for LatinoJustice, a Ford Foundation- and Soros-funded group advocating for open borders and DAPA’s legality. Before that she was member of the National Council of La Raza, another radical open borders organization with racialist undertones.

That’s what would happen in a nation of laws. Beginning April 18, we’ll find out if America is still that kind of nation.