February 14, 2018
There isn't a person from either side who wouldn't agree that our immigration system is broken. So when Barack Obama was president, the problem wasn't that he wanted to fix it. The problem was how he went about it. Unilaterally.
"I am not king," he said in 2010 when liberals pressured him to overhaul the system himself. "I can't just do these things by myself." But in 2012, that's exactly what Obama did. With a swipe of his pen he invented the Deferred Action for Childhood Arrivals (DACA) out of thin air, dodging the entire naturalization process for millions of minors who were brought to the U.S. illegally. Of course, Obama didn't have the authority to do it -- a fact he himself admitted a year earlier when he told his supporters, that he can't "just bypass Congress and change the [immigration] law by myself... That's not how a democracy works." His reelection came and went -- and suddenly, without voters to worry about -- he decided that's exactly how his democracy would work.
Most courts didn't agree, striking down DACA as efficiently as it had Obama's other attempts at lawlessness. The only reason it still stands is because the Supreme Court was a justice short when the case arrived in 2016, deadlocking at 4-4 after Antonin Scalia's death. Now, with Neil Gorsuch on the bench, the odds of DACA surviving are even slimmer. In the meantime, President Trump did what any constitutionally-abiding president would: he responded to Obama's executive order with one of his own -- repealing it. That's been the standard practice every time a new party enters the White House. The most obvious example is the policy preventing tax dollars from subsidizing abortions overseas (the Mexico City Policy), which ping-pongs in and out of effect depending on who's in charge.
Now, suddenly, because that person is Donald Trump, the rules no longer apply. Two activist judges have decided that Trump's powers are more limited than Barack Obama's, ruling as recently as yesterday that he can't stop an unconstitutional order with a constitutional one. Brooklyn Judge Nicholas Garaufis sided with state Democrats who argued with straight faces that rolling back DACA was "arbitrary," "capricious," and motivated by "racial animus." Actually, what it's motivated by is the rule of law – a concept the Obama administration never did quite grasp.
Like most liberals, these judicial activists seem to think that good intentions excuse lawlessness -- that somehow, they make skirting the legislative process okay. But, as the Federalist's David Harsanyi points out, "The Constitution makes no allowance for the president to write law 'if Congress doesn't act.'" And even if it did, as this judge seems to think, "Is [this] rationalization in play for all presidents? If Congress doesn't build a border wall... or act on any of the policies the president views as imperative, is Trump free to circumvent Congress because of D.C. inertia? Those arguing that DACA should stay in this iteration are arguing that Trump should be empowered to do the same. We can't have a stable government if there are separate sets of rules for Democrats and Republicans."
Yet unfortunately, that's the very situation we're in. Our courts have said they know better than voters, better than the Constitution, and certainly better than this president. That's particularly ironic, since, for the first time in years, they're dealing with a White House that actually accepts the limits of its authority. As Harsanyi says, "Nothing [Donald Trump] has done during his term thus far has undermined separation of powers in the way Obama regularly did. If anything, many of Trump's executive orders have merely rolled back the abuses of the past eight years." And still, we've seen judges trying to run the administration on everything from the military, transgender policy, national security, and immigration. President Obama was quite happy letting the courts govern since many shared his same contempt for the Constitution. Over his two terms, plenty of judges were more than happy to do his extremist bidding on policies he could never pass legislatively. Now, with Donald Trump in office, these same courts are trying to restrict his legal actions as president to protect the illegal actions of the previous president.
It's a dangerous situation -- with one remedy: you. I realize things in Washington are broken and a lot of conservatives are fed up with Congress, but we have to continue pushing forward. Rulings like this one are a sobering reminder of what's at stake in November. Thanks to Donald Trump, we finally have a president who will push back and appoint solid, constructionist judges to the bench. Without a Republican majority, he's powerless to stop the out-of-control activism in the courts. And with a vacancy possible at any time in the Supreme Court, it's absolutely vital that voters finish the job the Republican majority started.
If the courts continue on this path, it won't matter which party's in power or who sits in the Oval Office. We'll be turning the keys to our nation over to the unelected activists in black robes. And there's no telling how long the constitutional process would survive it.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.