Chaos following SCOTUS’s 4-4 split on Texas’s amnesty-challenge looks inevitable


June 23, 2016

By Dale L. Wilcox

With the Supreme Court’s decision in the multistate DAPA-challenge having come down, predictably split between party lines, it’s important to survey the consequences. No matter what, I anticipate complete chaos.

The 4-4 split affirms the Fifth Circuit’s decision to maintain Judge Hanen’s injunction establishing a binding precedent in that circuit only. But one key, closely related-question arises: will the underlying injunction apply across the country as Judge Hanen intended or will it be likewise limited to the Fifth Circuit by the Supreme Court. If the former, the Justice Department, pro-amnesty attorneys-general, and open-borders groups will be using all their firepower to challenge it in states where they’ll argue the precedent doesn’t apply leading to conflicting rulings around the country. If the latter, DAPA will basically go into effect nationwide because a ‘confined injunction’ against freely moveable people is absolutely meaningless. In other words, chaos is inevitable.

Following Judge Hanen’s ruling last year to block DAPA’s amnesty/work permits-giveaway (which hasn’t actually kept the covered illegal aliens from working and our enforcement agents have been ordered not to deport most illegal aliens anyway), DOJ sought to limit the ruling, claiming the order “vastly exceeds the relief necessary to redress the limited alleged harms” suffered by the state of Texas. After all, DOJ claimed, the nationwide injunction affected “States the Court did not find to have established any injury, and even to States that have informed th[e] Court that they desire and expect to benefit from [DAPA].” Those latter states are of course the thirteen which backed the DOJ’s motion to partially halt the injunction and signed onto a friend-of-the-court brief claiming that the hundreds of thousands of (mostly unskilled) illegal aliens unlawfully working in jobs meant for Americans somehow benefits those in their state who’ve traditionally worked those jobs i.e. minorities, single-mothers, the elderly, the mentally handicapped, teenagers, recent legal immigrants, etc.

In a brief to the Fifth Circuit, California business leaders, along with the state’s Latino Legislative Caucus and former DHS secretary Janet Napolitano (current University of California president), argued that “California’s economic growth has depended to a significant degree on undocumented workers, who despite representing just 7 percent of the State’s population, make up 34% of its farm workers, 22% of its production workers, and 21% of its construction workers.” (my emphasis). Said another way, the states told the court: ‘give us our foreign and illegal workers because we’re immigration-addicts…we refuse to innovate and cannot let the domestic labor market to function naturally.’

It’s inevitable the thirteen states in coordination with the DOJ will try to confine the injunction again; this time by lodging lawsuits, together or separate, in states and courts that are supportive of the open-borders project. Indeed, according to open-borders law blogs, they’re already gearing up for this. Barring the possibility that the Supreme Court yields to Obama on this issue (which is unlikely), sources say pro-amnesty state AGs intend on filing for declarations in their own district courts seeking friendly judges to declare that the injunction doesn’t actually apply in their state.

A moment’s thought, of course, reveals that such a proposal’s completely absurd. Nothing would stop the millions of illegal aliens in Texas (and Louisiana and Alabama) going out of state to apply for and receive DAPA-benefits. Narrowly confining the injunction to the Fifth Circuit would not, therefore, provide complete relief to the plaintiff-states as the law demands. The injunction has to be nationwide.

To confine it would also be highly hypocritical. The Obama Administration has been more shrill than any other about immigration law being strictly federal and they’ve routinely attacked states which pass laws that mirror (unenforced) federal immigration laws. States such as Arizona and towns such as Hazelton, Pennsylvania (my organization was involved in both cases) have practically begged Obama to allow them to commit their own resources to enforce aspects of federal immigration law, even though the financial costs and social problems created by illegal immigration are 100 percent the executive’s creation. Obama’s government, as well as Mexico’s, have fought these efforts every time, even though such a monumentally sensible solution would free up the limited resources that DOJ claims restrains the Administration from enforcing our immigration laws. That the DOJ now asks the Supreme Court to let some states apply amnesty shows how shameless the Administration has become in its drive to dissolve national sovereignty, the rule of law, and economic justice for America’s most vulnerable citizens.

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