WASHINGTON, June 23, 2016 — In a 4-4 decision Thursday, the U.S. Supreme Court let stand an earlier ruling by the Fifth Circuit Court of Appeals on Obama Administration immigration policy.
Fifth Circuit Justice Jerry E. Smith wrote in November, 2015, “Congress did not intend to make immune from judicial review an agency action that reclassifies millions of illegal aliens in a way that imposes substantial costs on states.”
Texas Gov. Greg Abbott filed a legal challenge against President Obama’s executive order on immigration while serving as the Lone Star State’s attorney general. That challenge was the basis of the case heard by the Fifth Circuit and Supreme Courts.
“The [Fifth Circuit] court’s decision,” said Abbott last year, “is a vindication for the rule of law and the Constitution. The president’s job is to enforce the immigration laws, not rewrite them. President Obama should abandon his lawless executive amnesty program and start enforcing the law today.”
The high court’s constitutional originalist, Justice Antonin Scalia, may be gone, but a split decision leaves the lower court’s ruling in place. His empty seat created an effective majority on the side of the State of Texas, which sought redress from federal actions; it was the next-best thing to having Scalia alive-and-well and sitting on the bench.
This is especially important for states that have standing before the Fifth Circuit Court. Of the 22 justices on the Fifth Circuit bench, 14 are Republican appointees, including Judge Jerry Smith, who was appointed by President Ronald Reagan.
And if Republicans keep control of the House and Senate, they are under no obligation to fill Scalia’s seat.
It is Congress alone that decides the composition of the courts.
After President Abraham Lincoln was assassinated in 1865, Vice President Andrew Johnson—a slave-holding Democrat chosen by Lincoln as his running mate in an ill-conceived unity ticket—became president.
Fearing he would appoint Supreme Court justices to undermine post-Civil War efforts by Radical Republicans in Congress, which granted former slaves citizenship and all the privileges and immunities under the Constitution, Congress reduced the number of Supreme Court justices by attrition from ten to seven.
The move prevented Johnson from filling any court vacancies during his tenure as chief executive.
If, as many conservative Republicans fear, Hillary Clinton wins the presidency this November, it falls to the bumbling, confused and hapless Republicans of Congress to get their act together and keep Scalia’s seat vacant in tribute to constitutional order, the separation of powers and a check on executive overreach.
In striking down Obama’s executive action last November, Judge Smith said,
“We expect Congress to speak clearly if it wishes to assign to an [executive branch] agency decisions of vast economic and political significance.”
That was his honor’s subtle way of saying, “Man up Republicans.”
“If you think aficionados of a living Constitution want to bring you flexibility, think again,” the late Justice Antonin Scalia noted. “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”
In other words, it’s a free people and their elected representatives in Congress that should decide the major issues of our times.
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