The Judiciary did its job in stopping Obama' lawless action to protect illegal immigrants from deportation. I also enjoy the irony of liberals whinning about activist judges when they have relied on activist liberal justices to force social changes on America instead of the political process to implement their agenda.
It is well past time for judges to use common sense instead of convoluted rationales to favor outrageous liberal demands. Way to go!
It is well past time for judges to use common sense instead of convoluted rationales to favor outrageous liberal demands. Way to go!
3
For decades - maybe even going back to the 1930's - the power of the President has been increasing, at the expense of Congress. This has occurred under both Republican and Democratic presidents. Congress itself is to blame for much of its loss of power. Just as one example, how many undeclared wars have we had since Truman sent troops to Korea without asking Congress for a declaration of war? And today Congress can't get enough votes to either cut off funding for President Obama's war in Syria or to affirmatively authorize it.
In general I support a more powerful president since the president is elected by the entire country. That, plus term limits, makes him/her less influenced by local or regional desires. (Think ethanol.) But we are a nation of laws, not men, and the primary role of the executive branch is to faithfully execute the laws of the nation.
In general I support a more powerful president since the president is elected by the entire country. That, plus term limits, makes him/her less influenced by local or regional desires. (Think ethanol.) But we are a nation of laws, not men, and the primary role of the executive branch is to faithfully execute the laws of the nation.
3
Ms. Greenhouse, First let me say your columns are generally terrific. At bottom in this one is your underlying belief in the myth that this country is a "government of laws not of men" (and women). That statement has been a myth for as long as I can recall. The judicial shenanigans you write about in this column simply mean that today's judges, especially those on the right, are willing to cast aside that quaint old concept without giving it even a second thought. Law is the blatant exercise of power not some lofty concept up in the clouds. The sooner we all figure that out the better off we will be.
4
Thank you, Ms. Greenhouse, for calling out the cynicism of the majority opinion.
6
Seriously, U.S. courts are referring to states as "sovereign"? Do we owe John Calhoun an apology?
3
I have read with great interest Linda Greenhouse's attempts to infer the Court's jurisprudential principles. I have long believed that there are none, that is that the opinions of its majority in important cases are driven entirely by reactionary politics in search of legal fig leaves. It seems she has come to agree with me.
6
Neo-conservatism is nothing more than treason masquerading as patriotism. In the mad tea party revulsion, no excess to acquire power is left untried. It is hoped that the people will see the folly, before the tipping point is passed.
5
Linda Greenhouse is indeed a national treasure. What more telling demonstration that the Right in our Country has completely thrown over any pretense of governance under the Constitution. The Right wing judiciary has truly contorted itself to get this outcome, seemingly decided before the evidence was presented.
7
I am reminded of teenagers playing a game of chicken and ending up in a car wreck -- Congress wouldn't engage in immigration reform, the President did instead, and now we've got a court case that seems to threaten to upset our jurisprudence in significant ways.
13
Phony conservatives are not complicated people.
Just bullies addicted to government power.
Just bullies addicted to government power.
14
No one should hold their breadth that the Roberts court will use this a chance to demonstrate that it cares about principle more than politics.
17
We can just see a frantic Roberts rushing about the offices of the other justices hurriedly throwing together a government-growing majority no matter what damage is done to the fusty old Constitution.
3
Regarding the Republican insistence that we are a country of laws and that the rule of law must be enforced, so that all undocumented persons must be deported regardless of the consequences: Why is it that these same Republicans are never heard to demand that all business owners and managers hiring undocumented workers must be arrested and (if convicted) fined and/or jailed?
23
I'd be really interested to knowing how the Republicans would go about deporting 11 million people, and paying for it, while reducing the taxes of corporations and the rich.
18
So my question is, if we were to agree to that, would you then accept deportation? As a Republican, I agree that those convicted of hiring illegal immigrants should be penalized. It's easy enough to verify, and beyond encouraging people to enter the company illegally, many of these employers also treat these individuals poorly in both wages and working conditions.
7
Looks like all of those junkets for judges and the Federalist Society worked. They bought the bullet. Welcome to 1883. What's next, the "the American Indian Religious Crimes Codes part II?" REH
9
Of course, Cons don't about, nor understand, "standing" so long as they get their way.
4
I under stand the argument about standing, and can appreciate the belief that this ruling may be a stretch of the norm. However, I ask those who feel that this case should not have been allowed to proceed this question. Where should a case where one branch of the government is overreaching its legal authority be heard?
There is a legitimate concern when the executive branch decides unilaterally that certain portions of the laws passed bu the legislative branch will not be enforced. Under this scenario, passing further legislation is fruitless, as the executive branch can simply use 'prosecutorial discretion' not to enforce the new laws as well. It seems to me that the only two remedies are either a lawsuit to force enforcement of impeachment for malfeasance, and the latter seems too severe.
If a conservative president were to decide not to enforce civil rights laws, what would the left feel was a proper response?
There is a legitimate concern when the executive branch decides unilaterally that certain portions of the laws passed bu the legislative branch will not be enforced. Under this scenario, passing further legislation is fruitless, as the executive branch can simply use 'prosecutorial discretion' not to enforce the new laws as well. It seems to me that the only two remedies are either a lawsuit to force enforcement of impeachment for malfeasance, and the latter seems too severe.
If a conservative president were to decide not to enforce civil rights laws, what would the left feel was a proper response?
6
Um yes. Well, the "proper response" to Iran-Contra was impeachment.
3
@mikecody
"Where should a case where one branch of the government is overreaching its legal authority be heard?"
But that's just it, Mike, the courts, looking at the arguments pro and con, can often determine whether an argument has legal merit (ie standing) as opposed to being an attempt to use the courts to determine the outcome to a political disagreement. Of course politicians want the courts to intervene and do their jobs for them, and as often as possible when they expect their side of an argument to be upheld. But the courts, up until recently, have been pretty good about not being drawn into adjudicating essentially political disagreements for fear of debasing the authority and independence of the courts. Greenhouse is illustrating, in this piece, how the courts are arguably beginning to be compromised by being unable to show either stare decisis, nor a compelling logic based on the constitution to break with stare decisis, in some of these appellate decisions.
The courts have the authority to adjudicate 'overreach' when it truly is overreach and not simply an excuse to get the judiciary to do what politicians don't have the votes to do. First, the radicals tried blackmail by shutting down government to get their way. Now they're willing to compromise the judiciary and the constitution to do the same thing? Greenhouse is doing yeoman's work keeping us citizens informed on the inside baseball of the judiciary. Because if the judiciary goes, so does our democracy.
"Where should a case where one branch of the government is overreaching its legal authority be heard?"
But that's just it, Mike, the courts, looking at the arguments pro and con, can often determine whether an argument has legal merit (ie standing) as opposed to being an attempt to use the courts to determine the outcome to a political disagreement. Of course politicians want the courts to intervene and do their jobs for them, and as often as possible when they expect their side of an argument to be upheld. But the courts, up until recently, have been pretty good about not being drawn into adjudicating essentially political disagreements for fear of debasing the authority and independence of the courts. Greenhouse is illustrating, in this piece, how the courts are arguably beginning to be compromised by being unable to show either stare decisis, nor a compelling logic based on the constitution to break with stare decisis, in some of these appellate decisions.
The courts have the authority to adjudicate 'overreach' when it truly is overreach and not simply an excuse to get the judiciary to do what politicians don't have the votes to do. First, the radicals tried blackmail by shutting down government to get their way. Now they're willing to compromise the judiciary and the constitution to do the same thing? Greenhouse is doing yeoman's work keeping us citizens informed on the inside baseball of the judiciary. Because if the judiciary goes, so does our democracy.
3
If the president can rule that millions of illegals can stay, a Republican could rule that millions of illegals must go. In the law, what's good for the goose, is good for the gander. Ms. Greenhouse, I suspect, is making an argument here that only the goose gets to do what it wants because she likes the goose better than the gander.
3
In fact, Republicans would try to deport 11 million immigrants. But of course, that's fantasy. As indicated recently, the ICE isn't funded to that level. (Apparently people are trying to 'starve' the government!) Better to focus on those whose past strongly recommends their deportation.
I suspect that you are 'suspecting' something you want to believe, as you allege of others.
I suspect that you are 'suspecting' something you want to believe, as you allege of others.
9
For today's hypocritical conservatives, executive overreach, like "judicial activism," is only a problem when they don't like the result to which it leads. If it's a Republican president doing the overreaching or a conservative court engaging in activism, it's all good.
By the way, a Supreme Court majority that so casually transformed the limited claim originally at issue in Citizens United (should Citizens United the nonprofit be allowed to air its film about Hillary Clinton within 30 days of the Democratic primaries) into a complete evisceration of our campaign finance laws should have no difficulty finding grounds for upholding the Fifth Circuit here.
By the way, a Supreme Court majority that so casually transformed the limited claim originally at issue in Citizens United (should Citizens United the nonprofit be allowed to air its film about Hillary Clinton within 30 days of the Democratic primaries) into a complete evisceration of our campaign finance laws should have no difficulty finding grounds for upholding the Fifth Circuit here.
13
Yet another column from Greenhouse where she - as bad as those on the hard right - selectively reads judicial decisions based on her liberal perspective. I could barely make it through the first few paragraphs.
Nothing to worth reading here folks, so keep moving along.
Nothing to worth reading here folks, so keep moving along.
5
Based on your thin response, I can understand that you did indeed have a hard time making it through the first few paragraphs.
6
Other than it makes sense and exposes the hypocrisy of judicial activism by conservative judges? Nah, not worth reading.
7
@Know It All
You should've read further...because you don't 'know it all'. Using opposing arguments, as Greenhouse does, to make a case is hardly 'selective'. And your disparaging comment, revealing your partisanship, is a significant disqualifier in and of itself. This is another cogent Greenhouse essay revealing the outlines of what some might call a judicial 'cabal' to thwart the rights of the Executive under the constitution by 'any means necessary'...even if it means showing obvious double standards.
The decades-long cri du coeur of the Right of 'judical overreach' of liberals now becomes reality under the same who once did the accusing.
You should've read further...because you don't 'know it all'. Using opposing arguments, as Greenhouse does, to make a case is hardly 'selective'. And your disparaging comment, revealing your partisanship, is a significant disqualifier in and of itself. This is another cogent Greenhouse essay revealing the outlines of what some might call a judicial 'cabal' to thwart the rights of the Executive under the constitution by 'any means necessary'...even if it means showing obvious double standards.
The decades-long cri du coeur of the Right of 'judical overreach' of liberals now becomes reality under the same who once did the accusing.
10
Linda Greenhouse, by her example of lucid analysis, is in danger of giving lawyers a good name.
23
Which is funny, given that Ms. Greenhouse isn't a lawyer. But she is an avowed leftist. It's easy to see both of these characteristics when reading her opinion columns.
2
@Mike C.: Please tell us where Ms. Greenhouse "avowed" being a "leftist".
6
"Avowed leftist": Is that something like a "dyed-in-the-wool Communist"?
2
SEPARATION OF POWERS in certain courts in Texas seems to be taken to mean that anything less than ceding total power to the state represents as a separation of Texans from their power. Hmm. It's very interesting how language, meanings and intent can get twisted, distorted and misrepresented without benefit to the public of judicial review, by a Conservative activist judge, effectively legislating from the bench, who has sought out a position by which she can control the legislation, in her view, by denying legislation or executive actions be enacted, apparently according to her whim. So nobody but an expert writing an opinion piece for a newspaper can comment meaningfully on the seeming miscarriage of justice, quite deliberately foisted upon the American people by a rogue judge. The technicalities involved in all of this political maneuvering are not insignificant, making it more likely to escape notice. What is scarcely surprising is the hypocritical position taken toward the Executive. Lots of things were accepted--no--encouraged during the Bush dynasty administrations. But any action by the current administration is flatly rejected in what appears to be a vicious display of bias on several levels. Somehow, I imagine that this judge uses the "N" word when people who would be affected are not in the room, so strong is her disdain and disrespect for President Obama. I do hope the Supreme Court will take this case. Maybe the activist judge will retire very quickly!
5
Funny Linda, I must have missed your column on the benefits of an expansive view of executive power when President W. Bush was in power. An oversight, I'm sure. It certainly couldn't have anything to do with your policy preferences rather than the law.
5
I didn't see that Ms. Greenhouse is advocating one way or the other for executive power; she is merely pointing out Mr. Eastland's change in position on executive power depending on who is in the executive and the change in position of the 5th Circuit on standing depending on the politics of the plaintiff.
14
@Mikey C.: You failed to read the part where "Linda" quoted the law that gives the Executive the power to decide "immigration enforcement policies and priorities." Repeat: both "policies and priorities." I can't think of a more explicit authorization for the Executive to set up the deferred deportation program.
7
Bottom line is simple. The conservative plot to stack our courts with radical reactionaries worked. We used to have a judicial system that was the model for the world. Now it is more akin to the kangaroo courts of third world oligarchies. We no longer have rule of law in our judicial system, we have partisan activists abusing their positions to force illegitimate interpretations of law into the public discourse. From the district courts all the way to the SCOTUS there is a cadre of "jurists" trained not in law but in theocracy at such disgraced institutions as Regents university.
19
Maybe Mao was right, "All justice is political."
5
No maybe to it.
2
Politics is about the squeaky wheel, not someone’s abstract conception of right and wrong, as judges would like us to believe. I doubt anyone thinks that Mexican Americans would feel the same way about illegal immigration if it were not the case that so many illegal immigrants are Mexicans: it’s a racial interest, not a point of principle. (On the other hand, Tea Party types are rigorously honest: they wouldn’t care if their own cousins from abroad showed up at their door: illegal means illegal, they’d say. Similarly, blacks and Jews tend to see larger principles involved in politics. This is all unusual.) Advocates often make living or returning to Mexico sound like a fate worse than death. What needs to be understood is that although Mexican and Central Americans, as many immigrants, come to this country because of its superiority to theirs, especially our economic superiority, there’s more to it—at least for some. Significant parts of these countries resemble to this day what we could call a failed state. If the government could say this publically about our dear friends to the south, we’d probably grant temporary (but ongoing) protected status to a fair number of illegal immigrants.
3
Too true. The big flaw of majority party in Congress is that it always identifies as the minority party. They crouch and connive when they should stand up and shout. When they lack the votes to carry legislation, they apply to the courts for direction in doing what the Constitution fails to permit. If this is the example of good governance that Mitch McConnell and John Boehner promised at the start of this congressional term, we are not amused.
8
The good news is that each instance of twisted judicial logic provides an opportunity for Ms. Greenhouse to explain the elegant logic upon which the laws of our nation are based and, hopefully, upheld.
11
One presidential administration ago, conservatives argued aggressively in defense of the Unitary Executive theory of governance, insisting that the President was free to order torture. These same conservatives condoned the use of presidential signing statements to justify the President's selective disregard of laws duly passed by Congress. At the same time, they advocated for judicial restraint. One can't envision them making any of the same arguments today.
If really we want an honest debate, let's stop pretending that these are principled positions and recognize them correctly as naked result-oriented sophistry.
If really we want an honest debate, let's stop pretending that these are principled positions and recognize them correctly as naked result-oriented sophistry.
31
Yes, the hypocrisy on both sides of the issue is breathtaking.
2
If only one thinks torture and not deporting parents of US citizens are the same thing.
Is that what you think?
Is that what you think?
3
It is simply criminal that the democracy-destroying top 1% financial elite in America have been able, through a financial coup, to attack OUR governments at every level including OUR United States Supreme Court and lesser courts across the land. They spent millions of $$ to get "conservative" judges elected at state and local levels and average people are being attacked through income-producing ticketing, tolling fines and other local types of "taxation without representation" while the wealthiest hide their stolen money offshore and travel the world in personal jets and yachts the size of ships. It is disgusting, criminal and UNACCEPTABLE! Only OUR votes can change it. We must encourage new voters to read the Progressive Voters Guide for their state and vote next election.
10
It is simply criminal that the democracy-destroying bottom 99% in America think that it is "democracy" to use their numbers to tell a small percent that they have to pay for everything, much like it is criminal for a white majority to declare other races to be less than equal. Taxation without representation? A majority is telling me "pay more and more." That's taxation without representation.
1
Sorry, ny surgeon your pain is not registering with me. Nor with any of the other "entitled" top 1% financial elite who are getting their wealth by holding 99% of us hostage to for-profit health care.
7
How is our elected government collecting taxes "taxation without representation?" That is beyond silly. In a DEMOCRACY the elected government IS our representation. Just because it is not who YOU voted for does not mean your are not receiving representation.
And claiming the 1% pays "for everything" is laughable. While the 1% receive the most BENEFITS from the society we all live in they do not pay a fair share back in proportion to what they get - and get primarily because the system is rigged to funnel wealth into their bank accounts. Just have to love when the super rich who are rich on the backs of everyone else complain about not having a little more excess to self aggrandize.
And claiming the 1% pays "for everything" is laughable. While the 1% receive the most BENEFITS from the society we all live in they do not pay a fair share back in proportion to what they get - and get primarily because the system is rigged to funnel wealth into their bank accounts. Just have to love when the super rich who are rich on the backs of everyone else complain about not having a little more excess to self aggrandize.
3
"Only by a twisted characterization of the program as a “decision to change the immigration classification of millions of illegal immigrants on a class-wide basis” did the Fifth Circuit majority find the deferred action program to be outside the frame of that delegated authority."
Twisted indeed if it requires that each individual member of the "class-wide basis" distinguishes themselves as individuals acting individually to apply, pay hundreds of dollars, and pass a background check - I assume an individual one, not a "class wide" one.
Twisted indeed if it requires that each individual member of the "class-wide basis" distinguishes themselves as individuals acting individually to apply, pay hundreds of dollars, and pass a background check - I assume an individual one, not a "class wide" one.
4
As an old lawyer with many years of trial and appellate practice in civil law matters, I can sympathize with the frustration someone of Linda Greenhouse’s experience and integrity feels in the blatant games played by the 5th Circuit and by the Roberts Supreme Court on the subject of standing.
The concept of standing may be something which makes the eyes of laymen glaze over, but it is a bedrock concept in the fair and efficient operation of our courts and, more importantly, in the separation of power among the three branches of the federal government and, even more importantly, in the division of power between the government and the states.
I only hope that I live long enough to see the politicized right-wing activists on the 5th Circuit and the five on the majority of the Chief Justice John Roberts Court receive the public opprobrium and lasting disgrace among honest lawyers everywhere which they deserve.
Lawyers appearing in court are allowed, with some ethical restraints, to propose foolish, partisan and wrong-headed arguments for their clients on issues like standing. Sitting judges, however, are supposed to be above such behavior.
The concept of standing may be something which makes the eyes of laymen glaze over, but it is a bedrock concept in the fair and efficient operation of our courts and, more importantly, in the separation of power among the three branches of the federal government and, even more importantly, in the division of power between the government and the states.
I only hope that I live long enough to see the politicized right-wing activists on the 5th Circuit and the five on the majority of the Chief Justice John Roberts Court receive the public opprobrium and lasting disgrace among honest lawyers everywhere which they deserve.
Lawyers appearing in court are allowed, with some ethical restraints, to propose foolish, partisan and wrong-headed arguments for their clients on issues like standing. Sitting judges, however, are supposed to be above such behavior.
67
My only quibble... people in Texas likely do not have the East Coast wages to pay more, more more in licensing fees the way they do in wealthier Connecticut.
It's easy to dismiss illegal immigration when it is not your state's schools, hospitals, job market and public resources being shared to the breaking point by citizens and non-citizens.
It's easy to pointificate from Connecticut, and support this never-changing status quo.
But illegal immigration, and the demographic shift that strains so many local governments will need to be addressed. If the Feds refuse to do it, the States will continue to step up and force the national politicians' hands...
If you don't like this, vote so that your own candidates -- in one way or another -- address this issue. What is happening here at home is just as important, if not more, than remaking the governments overseas and in hostile territories.
It's easy to dismiss illegal immigration when it is not your state's schools, hospitals, job market and public resources being shared to the breaking point by citizens and non-citizens.
It's easy to pointificate from Connecticut, and support this never-changing status quo.
But illegal immigration, and the demographic shift that strains so many local governments will need to be addressed. If the Feds refuse to do it, the States will continue to step up and force the national politicians' hands...
If you don't like this, vote so that your own candidates -- in one way or another -- address this issue. What is happening here at home is just as important, if not more, than remaking the governments overseas and in hostile territories.
7
Greenhouse's rigorous research uncovering the hypocrisy and political motives of so many conservative justices, in circuit courts and yes, the Supreme one, is a service to all Americans (whether liberal or conservative). But writing from such a prestigious perch as the New York Times, you'd think this might have some shaming effect on these judges who, in this case and many recent ones, wield patently absurd and professionally embarrassing reasoning, contradicting their own stated judicial philosophy to advance their political football a few inches down the field.
But you'd be wrong. These judges keep contradicting themselves because few others beyond Greenhouse bother to point it, and in other newspapers the story is about which side won in the courts today, or spins legitimate executive discretion as "Obama's overreach."
The justices continue to act so brazenly politically because they know they can get away with it, because conservative activists have been so successful in getting the media to associate "legislating from the bench" with liberals. I can't think of a better proof of the conservative media.
But you'd be wrong. These judges keep contradicting themselves because few others beyond Greenhouse bother to point it, and in other newspapers the story is about which side won in the courts today, or spins legitimate executive discretion as "Obama's overreach."
The justices continue to act so brazenly politically because they know they can get away with it, because conservative activists have been so successful in getting the media to associate "legislating from the bench" with liberals. I can't think of a better proof of the conservative media.
42
Yes, it's a shame that the four liberal justices act in such lock-step, with barely any dissent among them on the key issues of the day. They should look and learn from the conservative group, where their is routine dissent and disagreement. Ask yourself a question - when was the last time that GinsburgBreyerSotomayorKagan ever surprised you with a decision on a significant case? To the best of my recollection, it was Justice Breyer back in 2000 in Bush v. Gore where he sided with the conservatives (along with Justice Souter) in the 7-2 decision on the equal protection question of that case. Been a long time!
3
It just happened.
http://www.scotusblog.com/2015/11/court-protects-police-in-fatal-shootin...
You're not very informed.
http://www.scotusblog.com/2015/11/court-protects-police-in-fatal-shootin...
You're not very informed.
4
No, clearly it happens from time to time. Perhaps I wasn't clear enough - on key issues - perhaps high profile is a better term - or 5/4 type decisions. There are lots of court decisions; the one's that get a lot of play here are but a significant subset of the court's work. But thanks for the link!
In today's United States, hoping that Principles are accorded the weight due over partisan politics is looking for a pie in the sky! What is pitiable state of affairs that we have created in the recent years! Yet, all these concerted efforts to take the nation down-hill is uncalled for, and more importantly,. patently dangerous not only to the US but to the World in general. Hopefully, the coming Election will see the dawn of a new beginning!
3
I am not counting on the Roberts court here. They started the "sovereign rights of the states" nonsense in their decision to gut the Voting Rights Act in Shelby County. The Roberts Court's so-called "constitutionalists" simply made those rights out of whole cloth. In referring to the states' sovereign rights, the Fifth Circuit is just showing that it's a fast learner.
10
So if the Judiciary now claims the right to meddle in Politics and Presidential authority for a Democratic President will it use the same authority to block Republican Presidents? Judges in the Supreme Court are not elected and serve for life. Will voters give up their rights to elect an effective President when the courts decide to take over the government by fiat? This seems to be only an extension of the Republican Party into destroying government as we have assumed it to be. But our assumptions are proving wrong as our country is proving itself no longer a democracy.
Thank you Ms Greenhouse for standing up for what is correct in the face of obvious Judicial activism.
Thank you Ms Greenhouse for standing up for what is correct in the face of obvious Judicial activism.
12
Our president has constraints on power, despite what this one thinks. What he calls obstructionism is democracy at work. He fired the first shot when he stated that if you want things your way, "Go out and win some elections." Guess what- his team lost congress. HE needs to compromise, not make demands and then take illegal action if congress "obstructs" his will. Checks and balances are a great thing, except when they 'check' Obama.
ny surgeon doesn't understand prosecutorial discretion.
The poor thing.
The poor thing.
1
Understand it very well. A prosecutor has discretion to chose what to prosecute.
That is a little different from a president ordering them to not enforce a law wholesale. President could say "don't prosecute people who murder immigrants." Good idea???
That is a little different from a president ordering them to not enforce a law wholesale. President could say "don't prosecute people who murder immigrants." Good idea???
I love Ms. Greenhouse's columns; despise the 5th circuit, especially for its treatment of access to abortion clinics; and agree that the Texas claim for standing is "preposterous," but I wonder if Texas has a better argument for standing. The Deferred Action program surely affects who resides in Texas, since people there illegally are more likely to leave. The State of Texas has an interest in who resides within its borders. Thus, unless Texas lacks standing because the legitimacy of the Deferred Action program is a political question between the President and Congress, I think that Texas should have the standing to contest the legitimacy of the program.
3
One of the reasons the Congress is so despised by so many is the vitriol and unreason of the partisan divide. The Courts may soon be seen as suffering from the same disease. Should that day occur, these jurists who are so eager to further the cause of "their" side that inconsistency, if not hypocrisy, riddle their reasoning will rue the day.
'Course, unfortunately, so will any society which aspires to civility and " a more perfect union."
'Course, unfortunately, so will any society which aspires to civility and " a more perfect union."
3
"May soon"? I decided they were irredeemably partisan with Bush v. Gore almost 15 years ago.
3
ChicagoWill - Not to mention the leftist 9th circuit, whose history of decisions being routinely overturned is unsurpassed in recent memory.
As your well-researched article points out, the conservative judiciary has done a 180. When I was in law school, standing was a substantial barrier in many cases. We would not have heard the person rejected by University of Texas either under the same theory. Conservatives spent most of the 80s railing against the "activist" judiciary and it turns out they are even more activist. They are also willing to go over the line on many issues that are fundamentally political in nature, which has always been sacrosanct (much to the historical chagrin of liberals).
Do we have the beginning of the end of rule of law as we know it? Courts need to be somewhat conservative, because they are fundamentally interpreters of past case law (a following institution in terms of ideas). This leaves progress to the political system where it belongs. When the judiciary is captured by a party intent on getting its way in spite of precedent, the system necessarily fails. It becomes too unpredictable for us as citizens and looks more like a reality show. Soon, the judiciary will have ratings as low as the Congress.
Do we have the beginning of the end of rule of law as we know it? Courts need to be somewhat conservative, because they are fundamentally interpreters of past case law (a following institution in terms of ideas). This leaves progress to the political system where it belongs. When the judiciary is captured by a party intent on getting its way in spite of precedent, the system necessarily fails. It becomes too unpredictable for us as citizens and looks more like a reality show. Soon, the judiciary will have ratings as low as the Congress.
76
A cost to the states, however minor it seems to those who want to ignore the role of the legislature in creating laws, is sufficient to give the states standing to sue. That is the law. The action of the judge and the appeal court does not reflect judicial activism.
And there was no outcry from any Democrats when Obama packed the DC court of appeals. He filled four seats with Harry Reid's exercise of the nuclear option, despite the fact that Reid had blocked the filling of two seats vacated during the Bush administration. If that doesn't constitute partisan capture of the judiciary, nothing does.
And there was no outcry from any Democrats when Obama packed the DC court of appeals. He filled four seats with Harry Reid's exercise of the nuclear option, despite the fact that Reid had blocked the filling of two seats vacated during the Bush administration. If that doesn't constitute partisan capture of the judiciary, nothing does.
1
Thank you, Linda Greenhouse, for continuing to highlight the underlying legal principles being compromised -- or destroyed. Policy disagreements we will have always -- and I love your blunt talk here -- but the destruction of legal process, logic and precedent is what is sowing the wind day after day. If there are any true conservatives out there, this would be a good time for them to stand up for the Republic, which is what real conservatives have always done.
6
When judges render decisions that undermine the basic functioning of our democracy, do we citizens have standing to sue them on the grounds that they are doing irreparable harm to our form of government?
5
Linda:
Thank you for another fine article.
The judicial games played by judges and justices are detestable.
If a federal judge in Texas declares a ruling affects the entire United States, why can't that ruling be appealed to other Circuit Courts of Appeal?
Why should the lives of Californians, Oregonians, Washingtonians, et al be governed by a bigoted federal judge in Texas and the narrow-minded, politically motivated justices of the Fifth Circuit Court of Appeals, pray tell?
Thank you for another fine article.
The judicial games played by judges and justices are detestable.
If a federal judge in Texas declares a ruling affects the entire United States, why can't that ruling be appealed to other Circuit Courts of Appeal?
Why should the lives of Californians, Oregonians, Washingtonians, et al be governed by a bigoted federal judge in Texas and the narrow-minded, politically motivated justices of the Fifth Circuit Court of Appeals, pray tell?
4
The Republican justices on the Supreme Court care only about the Republican Party's policy ideas and propping up Republicans in the other branches and in the states. They don't care about fidelity to the law.
Trusting that John Roberts and his merry band of right-wing radicals are going to obey the law is like believing that the bank robber will suddenly find a conscience. It's naive. Roberts, Scalia, Kennedy, Thomas, and Alito will do whatever they can to hurt President Obama, promote the Republican chances in 2016, and enshrine in the Constitution that is supposed to represent us all their very narrow, ideological agenda.
Nothing will change until those who aren't Republicans determine to make sure that it does. And that takes votes.
Trusting that John Roberts and his merry band of right-wing radicals are going to obey the law is like believing that the bank robber will suddenly find a conscience. It's naive. Roberts, Scalia, Kennedy, Thomas, and Alito will do whatever they can to hurt President Obama, promote the Republican chances in 2016, and enshrine in the Constitution that is supposed to represent us all their very narrow, ideological agenda.
Nothing will change until those who aren't Republicans determine to make sure that it does. And that takes votes.
9
If your argument were true, Roberts would not have voted to save Obamacare (twice).
Now lets not let the facts get in the way of the leftist narrative.
Or let facts get in the way of Mike C's right wing paranoia.
Whatever the judicial reasoning, it was a big mistake for President Obama to issue an executive order that reads like a regulation that should have been proposed by DHS and adopted only after public comment. In fact, prior administrations have quietly exercised prosecutorial discretion to limit deportation of undocumented immigrants. Not every violator of law is prosecuted; many of us get off with a warning or a deferred prosecution agreement (especially big businesses and banks).
1
Our previous president attached signing statements to numerous laws that undermined the very laws he was signing, and few said a word about that -- certainly not the Republicans and judges who now find President Obama's stance on immigration law so reprehensible or illegal.
Law students take note when outlining Constitutional Law: Under current American jurisprudence, a matter is a non-justiciable "political question" until it is not.
Law students take note when outlining Constitutional Law: Under current American jurisprudence, a matter is a non-justiciable "political question" until it is not.
7
1. "The dissenting judge, Carolyn Dineen King, nailed it when she said the case “essentially boils down to a policy dispute” and that “the policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.”
She didn't nail anything and is wrong. This isn't a policy dispute. It's a legal one. What the president did is unprecedented in size, scope, and benefits for the illegal aliens he is trying to protect and it's all for the sole purpose of appeasing a constituency that his party depends on to be competitive in elections. That is what this comes down to. Add to it granting a pathway to citizenship to the 11-20 million so that they can later cast a ballot for Democrats on election day in exchange for rewarding their lawbreaking.
http://www.politifact.com/truth-o-meter/statements/2014/nov/21/barack-ob...
2. "In her dissenting opinion, Judge King said there had been “no justification” for what she called the “extended delay.”
What there was no justification for is expediting the case in the first place. It should've been put at the back of the line and heard after all the others before it. Then these illegal alien activists and this pro-Obama judge would've really been waiting a long time. That is what should've happened and the president then would have no chance to implement his insane executive orders that reward and encourage lawbreaking.
She didn't nail anything and is wrong. This isn't a policy dispute. It's a legal one. What the president did is unprecedented in size, scope, and benefits for the illegal aliens he is trying to protect and it's all for the sole purpose of appeasing a constituency that his party depends on to be competitive in elections. That is what this comes down to. Add to it granting a pathway to citizenship to the 11-20 million so that they can later cast a ballot for Democrats on election day in exchange for rewarding their lawbreaking.
http://www.politifact.com/truth-o-meter/statements/2014/nov/21/barack-ob...
2. "In her dissenting opinion, Judge King said there had been “no justification” for what she called the “extended delay.”
What there was no justification for is expediting the case in the first place. It should've been put at the back of the line and heard after all the others before it. Then these illegal alien activists and this pro-Obama judge would've really been waiting a long time. That is what should've happened and the president then would have no chance to implement his insane executive orders that reward and encourage lawbreaking.
8
The issue is: What makes the states sovereign, and from what do they derive that status? Surely not statues nor prior SCOTUS decisions. There is only one sovereign and that is the people, not the states. If it were the states the south would still have slavery and jim crow laws. The issue with immigration is a foreign policy question as well as an issue of the legal administration of law and squarely is the president's responsibility. It is the reactionaries on the SCOTUS who have created the sovereignty issue out of political cloth when,inspired by perverse political dogma, they wrecked the Voting Rights Act, something Roberts (wasn't he supposed to call balls and strikes?) was obsessed with accomplishing years before he joined the court.
2
Interesting that you cite the Politifact truth-o-meter. They said that "every president since Eisenhower, Republican and Democratic alike, has taken executive action on immigration." The executive orders were not identical in their scope or details, but they all generally "extended protections" or "deferred deportation" for a class of individuals. Reagan did it, and both George Bushes did it. Yet in those cases neither the Congress or the Judiciary sought to block the action on legal grounds because they knew there was no standing for doing so.
1
This is a beautifully written piece on what is the sad state of our nation's judiciary. I cannot help but think that what Ms. Greenhouse reports is the trickle-down theory at work, as circuit appellate justices such as these take their cues from the Supreme Court where especially Scalia has made clear that it is fine and indeed laudatory for politics to take precedent over well-reasoned legal opinions (though he wraps himself in his flag-burning decision, a perfect example of the exception proving the rule). Certainly there have been similar judicial crises throughout our history -- the New Deal court, the varied decisions of the Civil Rights era -- but I wonder if we have seen such a blatant partisan use of the courts since the arguments over slavery in the decade before the Civil War.
7
So to recap, we have 11 million illegal immigrants in the US. Congress refuses to fully fund the INS so there is a huge backlog of cases and insufficient resources to deport all 11 million individuals. President Obama has been waiting 7 years now for the House and Senate to agree on immigration reform and has offered to sign whatever bill they agree on. The Senate approved a bill, but the House did not consider it under John Boehner and Paul Ryan says he won't do anything about immigration reform either. So President Obama takes executive action to prioritize who will be deported while this stalemate continues. And the chess game continues as the Republicans challenge the executive order in court. If the Republicans wanted to reduce the number of illegal immigrants in the US, they could simply make E-verify mandatory to start with. Without jobs, many immigrants would leave the country. But this isn't about immigrants, it is about politics.
26
This is called democracy, and when you don't like the result, you cannot just do an end-run and break the law.
Do you really think the 11 million illegals are all waiting to legalize their status? My answer is simple: GO HOME and apply the legal way. Anything else is giving rights to criminals. And the flood won't stop until people realize that they will nto get right sand benefits if they sneak into the country.
Do you really think the 11 million illegals are all waiting to legalize their status? My answer is simple: GO HOME and apply the legal way. Anything else is giving rights to criminals. And the flood won't stop until people realize that they will nto get right sand benefits if they sneak into the country.
2
the Senate bill would have nearly tripled legal immigration, while doing nothing to stop illegal immigration. It was an incredibly irresponsible bill which would have added more than one and a half New York State population equivalents of immigrants to the US population in a decade. I'm a liberal Democrat, voted twice for O, but I'm now disgusted with his open borders policies. 200,000 immigrants annually is reasonable. nearly 3 million annually (the Senate bill) is crazy stuff.
2
I was a democrat who never voted Republican until 2008. Obama and the Senate are crazy. How and a better question is WHY should we allow so many people in?
1
What a tangled web Linda Greenhouse weaves!
It is really all very simple despite Greenhouse's same old obfuscation.
1. On taking office, President Obama took a solemn oath that he would take care that the laws be faithfully executed.
2. Obama did not like the immigration law on the books and he was unable to persuade Congress to change it.
3. So Obama decided not to enforce the immigration law for a class of up to 5 million people.
When the President chooses not to enforce the law with respect to up to 5 million people (and has suspended it with respect to 636,000 applicants), that is not an exercise of prosecutorial discretion, it is changing the law, something that Obama in his first act as President promised not to do. The exception has swallowed the rule.
Who does Obama think he is -- King George IV?
Linda, imagine that President Trump decided to use the weapon Obama has given him to end prosecutions for failure to pay capital gains tax. What do you say? Change in the law or an exercise of judicial discretion?
It is really all very simple despite Greenhouse's same old obfuscation.
1. On taking office, President Obama took a solemn oath that he would take care that the laws be faithfully executed.
2. Obama did not like the immigration law on the books and he was unable to persuade Congress to change it.
3. So Obama decided not to enforce the immigration law for a class of up to 5 million people.
When the President chooses not to enforce the law with respect to up to 5 million people (and has suspended it with respect to 636,000 applicants), that is not an exercise of prosecutorial discretion, it is changing the law, something that Obama in his first act as President promised not to do. The exception has swallowed the rule.
Who does Obama think he is -- King George IV?
Linda, imagine that President Trump decided to use the weapon Obama has given him to end prosecutions for failure to pay capital gains tax. What do you say? Change in the law or an exercise of judicial discretion?
9
Don't you understand. It's all the fault of the Supreme Court, since Bush v. Gore and Citizens United, the Koch Brothers, George W. Bush, the obstructionist Congress whose only role should be that of a rubber stamp, racism, and Fox News.
As I recall, Texas has a constitutional obligation to balance its budget. The Texas government has set a fee for drivers licenses with that obligation in mind. I find it interesting that the Fifth Circuit entertains a claim of injury that goes behind the expressed intent of the Texas government as to the amount that should be charged for drivers licenses consistent with its obligation to balance the Texas budget.
2
There are several dimensions to this conflict. There is the basic Republican/Democrat struggle, which has been intensifying in the judiciary; there is the power struggle between the courts and especially the Supreme Court and the President; and there is a large monetary dimension. It should be kept in mind that commercial interests favor immigration because it keeps wages low. The Republican judges on the Roberts court were carefully selected for their favorable attitude towards big business. Do not be surprised if this is the deciding factor rather than "ideological" or even partisan factors.
2
Let me see if I have this right: ILLEGAL aliens sneak in here and plant a seed on American soil - some, if not most, so that they can claim American "roots" and be allowed to stay with their "American" offspring. Now Obama and some other wrong-headed progressive liberals want to make the ILLEGALS legal...
Wrong! The kids can stay or go, but the ILLEGALS must go. That can happen one of two ways: We catch/discover them in some fashion and bundle them off to wherever they came from; or, we put real, constant pressure on the employers who willingly or ignorantly hire ILLEGALS. That pressure should take the form of fines, jail time, published stories about hiring ILLEGALS and therefore taking jobs from legal American citizens and/or legal residents. If they can't get a job and if their "anchor" child doesn't work, they will be gone, one way or another. Then, we need to work on our immigration system - which, by the way, is a totally different subject that ILLEGAL aliens.
Wrong! The kids can stay or go, but the ILLEGALS must go. That can happen one of two ways: We catch/discover them in some fashion and bundle them off to wherever they came from; or, we put real, constant pressure on the employers who willingly or ignorantly hire ILLEGALS. That pressure should take the form of fines, jail time, published stories about hiring ILLEGALS and therefore taking jobs from legal American citizens and/or legal residents. If they can't get a job and if their "anchor" child doesn't work, they will be gone, one way or another. Then, we need to work on our immigration system - which, by the way, is a totally different subject that ILLEGAL aliens.
3
Nice to see that your Caps Lock key is working, PK.
4
Your opinion (or my opinion) about the policy is completely beside the point. The question is whether the Obama administration has the constitutional authority to enact that policy, and clearly the answer is yes.
9
"Now Obama and some other wrong-headed progressive liberals want to make the ILLEGALS legal..." Well, you clearly did not read this article closely nor have you bothered to educate yourself as to what the Executive Action actually did. It did NOT legalize anyone. It did NOT provide any legal status whatsoever. It did NOT initiate a path to citizenship. It simply gave prosecutors the discretion to leave certain people alone IF they ever came into the justice system. No good end is served by your nonsensical grandstanding.
4
I have lost all confidence in Congress. It is nothing more than a place for political careers where getting reelected and supporting their party is all they care about. They spend the majority of time raising campaign contributions from organizations buying influence and access and do not consider what is best for this country as a whole. The Executive branch has always been a worry Executive Power being a concern that a "strongman" will rule rather than govern (eg Bush and his "I'm the decider" mantra and taking us into 2 decades long wars). The Judiciary has always been the "good guy" that kept the other branches from overstepping and lording over the minority. Now, the Federal courts can no longer be trusted to keep policy out of their decisions. Even the Supreme Court cannot be trusted to be the "umpire" calling balls and strikes as Roberts declared in his confirmation hearings. We now get ideological decisions from the highest courts in the land. When Judge Kennedy stated that political contributions did not even give the appearance of influence peddling, I considered that the last straw. How did it come to this?
41
You claim that Congress people "do not consider what is best for this country as a whole."
You do not seem to understand that the Republicans see the destruction of government as "best for this country as a whole," and are doing their best to achieve that, whether the country actually wants it or not.
You do not seem to understand that the Republicans see the destruction of government as "best for this country as a whole," and are doing their best to achieve that, whether the country actually wants it or not.
2
Don't hold your breath. The Roberts court is a fully owned subsidiary of the business and anti-Obama community. They seem to find no right that accrues to the individual that cannot be held as secondary to a corporation or to a state and their "logic" is often the twisted logic that is applied when one is trying hard to hide the con.
32
The law is not a "great brooding omnipresence" as Justice Holmes observed. After forty years of practice, I am convinced that law is politics with a legal veneer when it comes to the great issues of the day. This is evident in the numerous 5-4 Supreme Court decisions along political lines. Of course, legal critics refer to judges with whom they disagree as "activists" and to those with whom they agree as "strict constructionists" and "faithful to the law." It is all confirmation bias as the writer demonstrates.
44
This is message is directed to the person who moderates that comments and decides which ones will be posted.
Why won't you post my comments? I sent in a mild one about 30 minutes ago, and it has not been posted. I have sent in four or five in the past six weeks, and I believe that only one was posted. What is going on? What are your criteria?
Why won't you post my comments? I sent in a mild one about 30 minutes ago, and it has not been posted. I have sent in four or five in the past six weeks, and I believe that only one was posted. What is going on? What are your criteria?
1
Direct this to the public editor, Historian: [email protected]
2
Eastland sounds to be channeling Dick Cheney, who flogged a strong presidency before 1992, a flogging that morphed eventually into support of a “unitary president”. Of course, such dedication to a principle is most “energetic” when the argument supports one’s own ideological convictions and not those of others. Yet I was against the dangers inherent in the “unitary president” when it was Republicans who were flogging the notion, just as when it was Democrats who were doing the same, as now. Left or right, an extremely powerful executive is a frightening thing to behold … and a dangerous thing to tolerate.
But I’m disappointed to see Linda, a respected authority, bring up Bush v. Gore en passant as an example of “judicial energy”. Those two U.S. Supreme Court decisions were hardly that. The first, that found the Florida State Supreme Court to have exceeded its authority in 2000, was a 7-2 decision that captured the support of the Court’s liberals as well as its conservatives – it was only the second-decision remedy, to stop vote-counting to obey Florida law, which came down 5-4. How you can have a near-unanimously-recognized wrong NOT remedied by countering the wrong always struck me as … curious. And ideologically convenient.
Moreover, to defend a president’s wandering well off the reservation to impose policy preferences by diktat when he’s proven incapable of forming consensus by criticizing a court’s vacillation in deciding an issue strikes me as potting and kettleing.
But I’m disappointed to see Linda, a respected authority, bring up Bush v. Gore en passant as an example of “judicial energy”. Those two U.S. Supreme Court decisions were hardly that. The first, that found the Florida State Supreme Court to have exceeded its authority in 2000, was a 7-2 decision that captured the support of the Court’s liberals as well as its conservatives – it was only the second-decision remedy, to stop vote-counting to obey Florida law, which came down 5-4. How you can have a near-unanimously-recognized wrong NOT remedied by countering the wrong always struck me as … curious. And ideologically convenient.
Moreover, to defend a president’s wandering well off the reservation to impose policy preferences by diktat when he’s proven incapable of forming consensus by criticizing a court’s vacillation in deciding an issue strikes me as potting and kettleing.
3
I'm surprised that Texas, in addition to fixating on the drivers license issue, didn't also work in a pathological fear about who could use public bathrooms.
13
The de facto immigration policy of both elite democrats (including the NYT and this columnist) and big business republicans is open borders. And the Pew center projects immigration will add 88 million (four and a half NY State population equivalents) over the next 50 years.
The question must be asked, how many immigrants can the US absorb annually in a manner that is sustainable both economically (they shouldn't take jobs from Americans) and environmentally. Since the millennium, there are an additional 18 million immigrants, and an additional 16.5 million working age Americans, but only 9.3 million new jobs
http://cis.org/for-every-new-job-two-new-immigrants
The average immigrant's greenhouse emissions rise fourfold after arrival in the US, since most come from low footprint countries (Center for Immigration Studies, 2008).
It would be great if we could just absorb anyone who wanted to come here, and give them a good life, without hurting Americans, or the planet. But we need to face the fact that there are limits. To do otherwise is hubris.
The question must be asked, how many immigrants can the US absorb annually in a manner that is sustainable both economically (they shouldn't take jobs from Americans) and environmentally. Since the millennium, there are an additional 18 million immigrants, and an additional 16.5 million working age Americans, but only 9.3 million new jobs
http://cis.org/for-every-new-job-two-new-immigrants
The average immigrant's greenhouse emissions rise fourfold after arrival in the US, since most come from low footprint countries (Center for Immigration Studies, 2008).
It would be great if we could just absorb anyone who wanted to come here, and give them a good life, without hurting Americans, or the planet. But we need to face the fact that there are limits. To do otherwise is hubris.
6
Once again, thank you Ms. Greenhouse for explaining how Republican operatives masquerading as judges are undermining the rule of law in America. And these people have lifetime appointments. Most western nations, including Canada, appoint judges for a period of years, not for life. I wish that America could do the same. Alas, we will have the judges chosen by Reagan, Bush I, and Bush II for a long time.
7
Between the various challenges to the Affordable Care Act, this case and the Sila Luis / Sixth Amendment case as recently discussed in the Washington Post, the Republican judges and justices in the federal judiciary are turning this country into a lawless banana republic.
3
I can't figure out whether I agree or disagree with Greenhouse, and I think
that's because she is extremely inconsistent in the logic she uses. I think
she means to say "voila!" maybe 17 or 18 times in this piece, to say, "see?
there!" But all I get from this piece is that she takes offense very easily, even glibly, and at times uses similar logic to opposite purposes. It seems like she is selecting from a menu where she knows in advance what she likes or doesn't like, but pretends to be in the process of taste-testing each dish on the menu.
We have "snarky" comments from others that seem bland and dull, hardly
having any emotional affect whatsoever -- the snark appears all to be in the
fact that Greenhouse disagrees with them.
It's an incoherent discussion.
I suggest starting over:
a) Judges often vote their own political bias;
b) these 3 judges were appointed by __, ___, and __, and have
affiliations with __, __ and __ political organizations or parties.
When I was in law school, 90% of what one needed to know about
landmark cases was who appointed each judge, and what was the
judge's narrower political loyalty (rural Democrat, Wall St. Republican, etc.)
The rhetoric almost always was suited to the predictable bias. Greenhouse,
in closely analyzing the rhetoric, is chasing the tail of the tiger, and ignoring its bright-burning eyes and teeth.
that's because she is extremely inconsistent in the logic she uses. I think
she means to say "voila!" maybe 17 or 18 times in this piece, to say, "see?
there!" But all I get from this piece is that she takes offense very easily, even glibly, and at times uses similar logic to opposite purposes. It seems like she is selecting from a menu where she knows in advance what she likes or doesn't like, but pretends to be in the process of taste-testing each dish on the menu.
We have "snarky" comments from others that seem bland and dull, hardly
having any emotional affect whatsoever -- the snark appears all to be in the
fact that Greenhouse disagrees with them.
It's an incoherent discussion.
I suggest starting over:
a) Judges often vote their own political bias;
b) these 3 judges were appointed by __, ___, and __, and have
affiliations with __, __ and __ political organizations or parties.
When I was in law school, 90% of what one needed to know about
landmark cases was who appointed each judge, and what was the
judge's narrower political loyalty (rural Democrat, Wall St. Republican, etc.)
The rhetoric almost always was suited to the predictable bias. Greenhouse,
in closely analyzing the rhetoric, is chasing the tail of the tiger, and ignoring its bright-burning eyes and teeth.
3
I American government today, including the judiciary, the only "principle" that counts is "does the result advance the agenda of my group." The only question here will be which way Justice Kennedy votes; the other eight are already predetermined.
1
Interesting piece. Glad that you are not surprised at judicial cynicism and politics driving judicial decisions. Even after having practiced law for over 20 years at the time of Bush v. Gore, I was shocked and saddened to see our Supreme Court engage in totally partisan politics. I have looked at every federal court decision I have read through that lens for the last 14 years. I have not been disappointed. The Supreme Court has ruled with the same political bias as any state court with elected judges who receive campaign contributions from the parties in front of them. Not much else to say other than the term respect left my vocabulary 14 years ago to be replaced by the term political hack
18
Fundamental immigration policy has always been a matter for Congress because it is a fundamental right of the people, though their representatives, to determine whether millions of people have the right to legally reside here. If, as Ms. Greenhouse argues, the President has the power to determine who can stay, then presumably he has the power to determine who must go. The only time that the President was granted such a sweeping unconstitutional power was when the Supreme Court allowed FDR to send Japanese Americans to internment camps. The threat to freedom of excess executive power cannot be overstated. The internment of Japanese Americans was one of the most shameful chapters in American history. Ms. Greenhouse make multiple arguments but fails to make the only one that counts. Decisions regarding the citizenship of millions should not, must not and cannot be unilateral decisions of the executive.
8
At first glance michjas' comment seems thoughtful. At least until the last sentence which shows he does not understand the case at all. The case has nothing to do with citizenship. As the government points out:
“This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the executive branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority.”
“This memorandum confers no substantive right, immigration status or pathway to citizenship. Only an Act of Congress can confer these rights. It remains within the authority of the executive branch, however, to set forth policy for the exercise of prosecutorial discretion and deferred action within the framework of existing law. This memorandum is an exercise of that authority.”
26
Precisely, which is why this rule does not grant citizenship to any of the millions of people affected by President Obama's action. The inaction of the governing body whose job requirements include tackling the issue you described is what forced the hand of the President. If our legislature was anywhere close to functional, this political soap opera would never be an issue. But instead you have 200 some-odd hacks who think it is their responsibility to ensure the President is dragged through the muck at every turn, instead of serving the interests of the people who put their faith in them to work towards improving this country.
28
These "conservative" Circuits, abetted by five Justices, are systematically overturning our settled jurisprudence. The apparent intent of this movement is to upset the balance of democracy. The law must be known, predictable and understood for people to follow it. There are commonly known and accepted standards for judicial evaluation, such as the "reasonable man", specific injury, justiciable dispute, strict scrutiny, on and on. Unfortunately, as Ms. Greenhouse explains, legal reasoning no longer governs major judicial decisions (or at least makes an appearance in them) There is no legal rationale whatever in Bush v. Gore, the case overturning the Voting Rights Act because it had worked or the Citizens United. Simply justice by fiat. So scary! Ms. Greenhouse has for a while now been documenting the erosion of our fundamental principles. It seems only a year or two ago when she still seemed to have some hope for judicial integrity. She is as sadly cynical as I am now.
117
That is not cynicism. That is the ability to see reality and comment on it clearly.
5
The Fifth Circuit is rarely overturned by SCOTUS, and is one of the most respected appeals courts in the country.
This is what happens when you have a republican in the white house, they pack the courts with sociopaths and you get these types of decisions.
49
Kinda like when there's a radical progressive in the WH and he packs the court with wild-eyed liberal justices? See how that works?
1
PK, that would be a great argument if there were any examples to back it up.
There has never been a "radical progressive" in the White House and there are no "wild-eyed liberal justices" on the SCOTUS.
Other than that, well said.
There has never been a "radical progressive" in the White House and there are no "wild-eyed liberal justices" on the SCOTUS.
Other than that, well said.
6
Care to back that up with examples?
1
The party which holds the White House usually thinks that the president has a lot more power than the opposition does. She didn't have to go back to the Reagan. She could have gone back to Bush 2.0 and the "unitary executive." Neither Eastland nor Greenhouse believes presidents have virtually unlimited powers or should have more "energy" in the abstract - they believe that presidents on their side do and should. It is like filibustering. People like it depending on whether their party is in the majority or minority at the time.
The limits of presidential power is a central issue in our country since its inception and it is important. I haven't formed an opinion yet as to whether Pres. Obama was in his rights in this case, but, if when I determine to form an opinion, I will read the briefs, because you cannot rarely get a fair summary of the arguments on the other side from a political column. In this case, she doesn't raise what I think are fair questions - shouldn't prosecutorial discretion be about whether to prosecute in an individual case and not whether the president can choose to simply not enforce a law? And isn't a decision to not prosecute anyone if they satisfy certain post-criminal conditions actually writing a new law? And isn't deciding not to prosecute for illegal immigration for years pretty much the same thing as granting amnesty? And isn't it fair to mention that both sides believe more immigration will favor the Democratic Party?
The limits of presidential power is a central issue in our country since its inception and it is important. I haven't formed an opinion yet as to whether Pres. Obama was in his rights in this case, but, if when I determine to form an opinion, I will read the briefs, because you cannot rarely get a fair summary of the arguments on the other side from a political column. In this case, she doesn't raise what I think are fair questions - shouldn't prosecutorial discretion be about whether to prosecute in an individual case and not whether the president can choose to simply not enforce a law? And isn't a decision to not prosecute anyone if they satisfy certain post-criminal conditions actually writing a new law? And isn't deciding not to prosecute for illegal immigration for years pretty much the same thing as granting amnesty? And isn't it fair to mention that both sides believe more immigration will favor the Democratic Party?
2
Or, maybe go back to the FDR administration. Locking up people in concentration camps because of their ethnic background; threatening to pack the Supreme Court with a batch of judges that would do whatever he wanted. The most wicked unconstitutional behavior by a POTUS - the award goes to the Democrats, in a landslide!
1
When I was a child I felt completely secure that the Law was always fair and right and could be counted on. I'm an old woman now and am just extremely grateful when a column such as yours shines a light into the judicial swamp. Maybe "swamp" isn't the right comparison ~ alligators don't pretend to be other than what they are. Thank you, Linda Greenhouse. I hope you'll also comment on the TPP...
91
Outcome oriented judicial decisions are always bad law. Bush v. Gore, because of the importance of the outcome is the worst example. But thanks to Ms. Greenhouse for her spot-on column.
It is time that we all note that "judicial activism", for so long a false battle cry of the Right, is currently the province of so-called conservatives who are thinly disguised partisan politicians.
It is time that we all note that "judicial activism", for so long a false battle cry of the Right, is currently the province of so-called conservatives who are thinly disguised partisan politicians.
49
Should we assume that all the statements Mr. Obama has made on the record stating that he is merely the POTUS and not the emperor and thus has not the power to unilaterally change the law, or exercise unlimited power, were false statements; uneducated, without due diligence, merely mindless ramblings?
If you believe Greenhouse, I guess you must, right?
If you believe Greenhouse, I guess you must, right?
1
I'm sure you were just fine, PK I, when it was Bush issuing all of his executive orders, right?
3
Neither Bush nor any other POTUS (except maybe FDR), went as far, as broad and as deep at Obama. Not even close. The total numbers mean nothing - it's the content the extent they take power that is not rightly (Constitutionally) theirs to exercise. Obama and the progressives see the Constitution as a piece of toilet paper.
1
Do not apologize for your cynicism nor go easy on pointing out judicial cynicism and routine violations of prior orders and dictum. Courts twist and turn to get the political result that they want in a wanton and hypocritical manner. And, yes, it is a biting irony that the conservative movement--so active in espousing judicial restraint--take opposite positions when the politics is against them.
35
Greenhouse: "In reviewing the decision, the Roberts court has a chance to demonstrate that it cares about principle more than politics."
Thanks, LG, for making this issue more understandable.
However, I am not betting that principle will prevail over politics in the Supreme Court. I think we have more than sufficient examples of "a judge’s political outlook might influence a judicial outcome" -- e.g., Citizen United v. FEC, District of Columbia v. Heller, Burwell v. Hobby Lobby.
Thanks, LG, for making this issue more understandable.
However, I am not betting that principle will prevail over politics in the Supreme Court. I think we have more than sufficient examples of "a judge’s political outlook might influence a judicial outcome" -- e.g., Citizen United v. FEC, District of Columbia v. Heller, Burwell v. Hobby Lobby.
45
And the same sex marriage decision.
Time to reread the 14th Amendment, Jackson.
Every justice on the Supreme Court probably knows or has a member of their families who is gay. When an issue is close to home you have the reason for the outcome.
We so often hear jury nullification criticized. The 5th Circuit has engaged in nullification from the bench.
12
Linda Greenhouse provides more cogent, concise, and intelligent analysis per op-ed than any other op ed writer in the United States major media publications. I love me some Paul Krugman, but the ability to break down what is going on at the level of our federal courts, connect it to the history of the court, contemporary politics, and likely political effects is unparalleled.
She is a writer who clarifies our sense of the times we live in, through analysis of the laws and courts we live under. A national treasure.
She is a writer who clarifies our sense of the times we live in, through analysis of the laws and courts we live under. A national treasure.
132
Well said. She is a true guardian of democracy.
3
Thank you Linda for this succinct and humorous characterization of the Fifth Circuit's implicitly political mindset, "I suppose you might have preferred the case to be named “Twenty-six Sovereign States v. A Man Called Barack Obama.”)
To echo a couple of other fine comments, we really do need to start putting political registration next to judges names, i.e., (R) and (D); and your OpEd piece does cry out for the electorate to take the 2016 POTUS election seriously... really, very seriously.
To echo a couple of other fine comments, we really do need to start putting political registration next to judges names, i.e., (R) and (D); and your OpEd piece does cry out for the electorate to take the 2016 POTUS election seriously... really, very seriously.
95
So, they are not worthy to judge a dog show?
7
"A strife of interests masquerading as a contest of principles" was the way Ambrose Bierce defined politics more than a century ago.
Now we see that our judicial system isn't much better.
Now we see that our judicial system isn't much better.
15
Thank you for your effort. Your legal expertise is helpful to me in understanding what at best is difficult to understand. My take away is that the spirit of cooperation and desire for unity is becoming almost non existent. The atmosphere has become poisoned and I'm not talking about global warming, I'm talking about respect and unity. It used to be the United States. How have we deteriorated to this dog eat dog, eye for an eye, my way or the highway attitude? It needs to change. The supreme court? Looks to me that most of them too, have drank the cool aid.
37
@Bob Smith: The spirit of cooperation is not gone, it has only withdrawn from the Republican party.
2
Always grateful for your vision. I really don't know how you continue in the face of such hypocrisy, ignorance and sheer evil. Admirable. Thanks.
9
Dwight, She must continue as we must because it can get worse than it already is. The oligarchs and republicans have a plan,, and have had a plan for many decades to de-educate the masses and have done so with eradication of teachers, unions,school funding, all instruments of proper education which threaten these people's power, control and abuse.
3
The next to last sentence in Professor Greenhouse's column captures the heart of the issue involved in so many recent court decisions. Do the judges see themselves as principled defenders of the rule of law, or as partisan advocates of a particular political philosophy? This question applies equally to conservative and liberal justices.
The issue is one of integrity, and any judge who lacks that virtue deserves no respect. Bias is an inherent part of the human condition, but conscious intent to use the power of the judiciary to favor partisans in a political struggle is not encoded in our dna. SCOTUS has already lost some respect in the last 20 years or so, as suggested by the fury of conservatives when Chief Justice Roberts voted to sustain the ACA. He was supposed to be 'their' judge.
The courts have never been immune to politics, but the corruption seems especially far advanced now. If the public ever concludes that the federal judiciary is composed of hacks for one party or the other, the moral authority of the courts will collapse. That would be a tragedy for everyone.
The issue is one of integrity, and any judge who lacks that virtue deserves no respect. Bias is an inherent part of the human condition, but conscious intent to use the power of the judiciary to favor partisans in a political struggle is not encoded in our dna. SCOTUS has already lost some respect in the last 20 years or so, as suggested by the fury of conservatives when Chief Justice Roberts voted to sustain the ACA. He was supposed to be 'their' judge.
The courts have never been immune to politics, but the corruption seems especially far advanced now. If the public ever concludes that the federal judiciary is composed of hacks for one party or the other, the moral authority of the courts will collapse. That would be a tragedy for everyone.
10
It's an Alice-in-Wonderland world,
These opinions leave one's toes curled,
Bias unveiled
Standing is derailed,
Defiance to justice is hurled.
Banana republic are we,
The Land of the Brave and the Free?
Never was taught in school
About oligarch rule,
But that's exactly what we see!
These opinions leave one's toes curled,
Bias unveiled
Standing is derailed,
Defiance to justice is hurled.
Banana republic are we,
The Land of the Brave and the Free?
Never was taught in school
About oligarch rule,
But that's exactly what we see!
80
As usual, Ms. Greenhouse nails it, big time. The majority opinion of the two Fifth Circuit judges is a transparently (and shamefully) odious power grab to throttle a president whom they despise. On the standing issue, this decision contradicts everything I learned in law school about the properly limited jurisdiction of the federal courts. We should only hope that the petition for writ of certiorari will be granted, followed by what should be a unanimous SCOTUS opinion to slap down this judicial overreach. May it be so.
156
I wouldn't hold my breath, what with the knuckledraggers on the court, I'm willing to bet it will be 5/4 the wrong way.
4
Ms. Greenhouse reminds us again, in depth, why presidential elections are important; presidents appoint federal judges. The importance of this is underlined by the fact that there are no term limits for federal judges.
165
Yes. It is beginning to look like we should write (D) and (R) after judges' names, and just admit that we have two legislative branches of government.
I wish all the NYTimes' columnists could be as knowledgable and worth reading as Greenhouse and Krugman.
I wish all the NYTimes' columnists could be as knowledgable and worth reading as Greenhouse and Krugman.
181
We do not have two legislative branches of government but we do have some very overbearing, excessively activist and very politicized Judges. I thought they were supposed to be as objective as possible. This is certainly not proper interpretation of the law but political ego trips by maniac Judges. And where is the accountability where is the appeal except to other Judges?
4
Also Elisabeth Rosenthal on health care.
3
Agree: "I wish all the NYTimes' columnists could be as knowledgable and worth reading as Greenhouse and Krugman."
6
Some days the Fifth Circuit is more of an embarrassment than other days, and then there are the red letter days when they act like they've been celebrating Mardi Gras early in their New Orleans chambers.
It's distressing any time we see a court deliberately dragging its feet, openly falling prey to Paul Krugman's " It's O.K. if You're a Republican " (I.O.K.I.Y.A.R.) credo:
http://www.nytimes.com/2005/01/07/opinion/worse-than-fiction.html
It helps to keep in mind the strange legal climate surrounding the New Orleans court and the energy industry's reflexive hatred of all things Obama, a window on which was provided with New Jersey's proposed settlement with Exxon over contamination at 2 refinery sites, which would deprive New Jersey's plaintiff's attorneys from New Orleans who handled the case on contingentcy of as much as 20% of $ 8.9 Billion$:
http://www.nytimes.com/2005/01/07/opinion/worse-than-fiction.html
Can't have a leading GOP'er industry firm paying out a settlement to NJ where 20% could possibly go to a New Orleans firm specializing in filing EPA suits against industry, can we ? Expedited rulings within 60 days apparently fall into the same slicing/dicing machinery, where the term ' days ' becomes a noun with flexible, variable definition, depending on who benefits.
It's distressing any time we see a court deliberately dragging its feet, openly falling prey to Paul Krugman's " It's O.K. if You're a Republican " (I.O.K.I.Y.A.R.) credo:
http://www.nytimes.com/2005/01/07/opinion/worse-than-fiction.html
It helps to keep in mind the strange legal climate surrounding the New Orleans court and the energy industry's reflexive hatred of all things Obama, a window on which was provided with New Jersey's proposed settlement with Exxon over contamination at 2 refinery sites, which would deprive New Jersey's plaintiff's attorneys from New Orleans who handled the case on contingentcy of as much as 20% of $ 8.9 Billion$:
http://www.nytimes.com/2005/01/07/opinion/worse-than-fiction.html
Can't have a leading GOP'er industry firm paying out a settlement to NJ where 20% could possibly go to a New Orleans firm specializing in filing EPA suits against industry, can we ? Expedited rulings within 60 days apparently fall into the same slicing/dicing machinery, where the term ' days ' becomes a noun with flexible, variable definition, depending on who benefits.
56
Append to previous - correct NJ link:
http://www.nytimes.com/2015/03/10/nyregion/chunk-of-new-jerseys-money-fr...
http://www.nytimes.com/2015/03/10/nyregion/chunk-of-new-jerseys-money-fr...
5
Of course, prosecutorial discretion by Nixon's Executive Branch was alright:
http://www.pbs.org/newshour/rundown/you-may-say-hes-a-dreamer-john-lenno...
but such discretion by Obama's Executive Branch is ' lawless ', again showing It's O.K. if You're a Republican (I.O.K.I.Y.A.R.) hypocrisy.
http://www.pbs.org/newshour/rundown/you-may-say-hes-a-dreamer-john-lenno...
but such discretion by Obama's Executive Branch is ' lawless ', again showing It's O.K. if You're a Republican (I.O.K.I.Y.A.R.) hypocrisy.
60
Illegal aliens will become eligible for Medicaid benefits in addition to the ones they already have: maternity and emergency care. The state has to pay for 50% of the Medicaid care, as well as 100% of the cost of processing the applications. The illegal aliens will also become eligible for food stamps; although the federal government pays for the food stamps, the state has to pay all of the cost of processing the applications.
In addition to the costs that will be borne by the states if Obama's actions are affirmed is that, although this is not a state's rights issue, there will be no way to reclaim the $30,000 per household that the illegal aliens will reap in federal refundable tax credits.
It is disingenuous to assert that the federal; courts are restricting Obama's right to selectively enforce the immigration law. The big issue is not that he is not deporting them, he is granting them legal status to claim safety net benefits and also giving them work permits, which exceeds his authority.