A loss at the U.S. Supreme Court bestowed President Donald Trump with sweeping new powers. Now liberals are upset that he plans to use them.
In June, the court ruled against the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals program, commonly known as DACA. In 2012, then-President Barack Obama implemented DACA by executive order. It applied to children brought to the United States illegally. It shielded them from deportation, provided them with work authorizations and gave them access to Social Security.
The program was obviously unconstitutional. From 2001 to 2011, more than two dozen bills were introduced in Congress that would have given these illegal aliens legal status. They all failed. In 2011, Obama said that he couldn’t “just bypass Congress and change the (immigration) law myself. … That’s not how a democracy works.” He was right.
But Obama was up for re-election in 2012 and needed to energize the Latino vote. His principled objection to illegal executive actions went by the wayside, and he created DACA.
The issue before the Supreme Court wasn’t the merits of DACA as a policy. For his part, Trump has said he would sign a bill that includes a program such as DACA.
Instead, the court had to determine whether Trump could use an executive order to repeal an illegal executive order from a prior president. The court’s four liberals and Chief Justice John Roberts said no. They held that the Trump administration had to jump through the hoops created by the Administrative Procedures Act.
John Yoo, a lawyer who worked in George W. Bush’s administration, summed it up this way, “According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult — especially for their successors.”
The problem here is obvious. One president shouldn’t be able to force his successor to enforce unconstitutional executive orders. That’s exactly the principle the court established, however.
If them’s the rules, then Trump’s going to play by them.
“I’m going to be signing a very major immigration bill as an executive order,” Trump said in an interview with Telemundo last month. The “Supreme Court now, because of the DACA decision, has given me the power to do that.”
Trump said his plan will include a road to citizenship for DACA participants. Based on his past priorities, it’s likely his plan will also include new restrictions on immigration that congressional Democrats wouldn’t approve of.
Trump has also said that he’s going to implement a health care plan via executive order. Yoo previously laid out ways that Trump could use the DACA ruling to expand access to firearms and lower taxes. Liberal writers from places such as The Washington Post and The New Republic have all expressed their dismay.
On one hand, that’s understandable. What Trump is planning to do stretches presidential power as articulated in the Constitution. But the left cheered the DACA decision.
The unwillingness of liberals to uphold constitutional principles if they don’t like the policy implications has turned the Constitution into a sucker’s game for conservatives. If the Constitution or even past precedent favors liberals, it must be upheld. If those same principles favor conservatives, they’re ignored.
You see this on the court itself. In almost every high-profile case, the court’s liberals start with their policy goals and work backward to come up with a justification. The court’s four conservatives begin with the Constitution and apply those principles whatever the policy ramifications. Roberts appears to read the polls and vote based on how he thinks the public will perceive the ruling.
This explains why the court, by a 5-4 decision in June, prevented Louisiana from requiring abortionists to have admitting privileges at local hospitals. Abortion — which is never mentioned in the Constitution — is a top priority for liberals. Therefore, it can’t be restricted even by applying standards broadly required of medical professionals. Roberts, who voted to uphold similar abortion requirements in 2016, twisted himself into a pretzel to vote with the majority.
Contrast that with how the court disregards the freedom of religion, which is literally the first thing listed in the Bill of Rights. Just days ago, in another 5-4 decision, the court refused to overturn Gov. Steve Sisolak’s limits on church gatherings, even though they’re more restrictive than limits placed on casinos. It is unfathomable that the court’s liberals would have granted a Republican governor similar discretion to allow all elective surgeries except abortion.
I can’t condone Trump’s plan to impose unconstitutional executive orders, but neither can I condemn it. The Supreme Court — and Roberts specifically — took a jackhammer to the Constitution in its DACA decision. Trump is preparing only to use the tool they’ve placed in his hands.
Victor Joecks’ column appears in the Opinion section each Sunday, Wednesday and Friday. Listen to him discuss his columns each Monday at 3 p.m. with Kevin Wall on AM 670 KMZQ Right Talk. Contact him at email@example.com or 702-383-4698. Follow @victorjoecks on Twitter.