Patterico's Pontifications

11/10/2015

Fifth Circuit Rules Obama’s Executive Amnesty Still on Hold

Filed under: General — Patterico @ 7:35 am



Washington Times: Judges use Obama’s own words to halt deportation amnesty:

A federal appeals court said President Obama’s own words saying he was claiming powers to “change the law” were part of the reason it struck down his deportation amnesty, in a ruling late Monday that reaffirmed the president must carry out laws and doesn’t have blanket powers to waive them.

. . . .

In an opinion freighted with meaning for the separation of powers battles, Judge Jerry E. Smith, writing for himself and Judge Jennifer Walker Elrod, singled out Mr. Obama’s own claim that he acted to rewrite the law because Congress wouldn’t pass the bill he wanted.

The key remark came in a speech in Chicago just days after his Nov. 20, 2014, announcement detailing his executive actions. Fed up with a heckler who was chiding him for boosting the number of deportations, Mr. Obama fired back, agreeing that he’d overseen a spike in deportations.

“But what you are not paying attention to is the fact that I just took an action to change the law,” the president said.

The two judges said the Justice Department failed to explain away Mr. Obama’s remarks.

“At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes,” Judge Smith wrote.

It’s a change in the law when Obama talks about it, but it’s just enforcing existing law when his lawyers go before the judges. Kind of like how ObamaCare wasn’t a tax when Obama talked about it, but then was a tax when his lawyers went before the judges. John Roberts shrugged off that lie. I’m not sure the Supreme Court will get in the middle of this one, though. Which means, in all likelihood, that the issue will be deferred for the next occupant of the Oval Office. (Deferred Deferred Action for Parents of Americans and Lawful Permanent Residents!)

It makes this election more important than ever.

In times like this, one recalls the words of Nelson Muntz:

44 Responses to “Fifth Circuit Rules Obama’s Executive Amnesty Still on Hold”

  1. Nelson certainly has a way with words.

    Patterico (86c8ed)

  2. What a contemptible human the US’s current occupant of the White House is. That we’ve allowed him to be in that position for over 7 years says what about we, the American people?

    Mark (f713e4)

  3. It makes this election more important than ever.

    not if it’s a choice between bill’s demented hooch and establishment fave marco sleazio

    happyfeet (a037ad)

  4. I take it as a hopeful sign, before Judge Hanen, decide ‘you shall not pass’ it was considered a fait accompli, now the President is like the burglars in Home Alone,

    narciso (ee1f88)

  5. not if it’s a choice between bill’s demented hooch and establishment fave marco sleazio

    Wonderful! So now you won’t vote for Rubio, others here won’t vote for Trump, still others won’t vote for Bush, Kasich or Christie. Yet every democrat including the dead will vote twice for whoever their candidate is. And you wonder why we lose. I know why we lose.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  6. i’m not voting unless it means something

    and republicans are every bit as much a sleazy whore party as the democrats anymore

    i have oodles of links

    if the best they can do is a smarmy lifeydoodle p.o.s. like rubio i have better things to do with my day

    happyfeet (a037ad)

  7. happyfeet, what you and many others are forgetting is you’re not voting for God, just President. He won’t be perfect. He won’t be all seeing. He won’t be omnipresent. Just a person trying to do a hard job. But one WE picked, not the left, the socialists, the anarchists or the communists. So no matter who it is he’ll be better than whatever they have. So hold your nose, eat some tacos, some baba ganoush and some aspic from a Jell-O mold but vote Republican to save the Republic.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  8. that is not correct

    electing a lightweight loser like sleazio will demolish the party down ticket

    and that is not bueno

    it has tax consequences

    the national establishment republican whores who are now flocking to sleazio since it’s become clear that failmerica has rejected the bushfilth dynasty – what did these losers just do?

    yes yes yes they voted to bust the sequester caps

    i’m not voting for someone sympathetic to these spendy spendy cap-busting whores and sleazio is a bird of that feather – he’s a chamber of commerce buttboy head to toe

    and that’s that

    the only ones left i’d vote for are Donald Trump, Jared Padalecki, or Ricardo Montalbán

    and I don’t even like Donald Trump

    but he’d backfoot the establishment priebustrash, yes he would

    and that would please me

    happyfeet (a037ad)

  9. One other thing, happyfeet. It does matter if you vote just as it does matter if you don’t vote. If you vote it’s to save the Republic from continuing with the same leadership that’s brought us to the edge of this pit. The people who want everything we don’t want for America. The people who hate America and want to “fundamentally change” her. And by not voting you are acquiescing to their beliefs, ideas and authority and God have mercy on your soul because the secularist authoritarians and moslem invaders they bring in won’t. You can see how the secular authoritarians work looking at Wisconsin. And you can see how the moslem conquerors work at this link from mg: http://www.liveleak.com/view?i=8ce_1447076932 .

    Rev. Barack Hussein Hoagie™ (f4eb27)

  10. You really don’t get it, happyfeet. By not voting you’re saying you want to allow the leftists, anarchists, socialists and communists to run the country. Do you really believe they’d do a better job and less damage than Rubio? Really? If Rubio gave head to every member of the C of C he’d still be better than Hillary!.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  11. is not my problem anymore, and there’s simply not that much difference between bill’s demented hooch and an establishment buttboy like sleazio

    this ted cruz person would’ve probably been a good choice but I’m not voting for a kim davis butt-snuffler

    that unfortunate choice what he made was gratuitous, it was off-putting, and it told me very clearly that this ted cruz person is very very highly selective about who he wants to have voting for him

    happyfeet (a037ad)

  12. these times, they are dire for this once-proud little country

    the republican party did not rise to the challenge

    and that’s terribly sad, but you can’t cover the sun with one finger

    happyfeet (a037ad)

  13. the whole sequester cap-busting thing

    this was a deal-breaker for me Mr. Reverend

    I hardly ever ask for anything and I asked them very nicely to keep the caps where they were like how they promised they’d do when they voted for them in the first place

    and what did they do?

    they really let me down is what they did

    happyfeet (a037ad)

  14. busting those caps was even a worser choice than the new starbucks cups I think

    happyfeet (a037ad)

  15. butt snuffling or not, don’t be labeled as a one issue derriere.
    Cruz/West for no more failamerica, happyfeet. You know you can trust me.

    mg (31009b)

  16. If Obama is not beholden to the law or the Constitution, why am I obligated to regard him as President? Cheat on your taxes, everyone. Rule of law has been rescinded in the United States of…whatever country this is.

    When Snake Plissken was informed that the President had gone down in Manhattan, he asked “President of what?”

    CrustyB (69f730)

  17. Amazing how the President will say he is doing something illegal–“changing the law because Congress won’t”–and not expect there to be any consequences for it.

    I had to stop reading the Onion because it keeps coming true.

    While Obama has expressed no remorse for the grisly murders—point-blank shootings with an unregistered .38-caliber revolver—many journalists said it would be irresponsible for the press to sensationalize the story.

    “There’s been some debate around the office about whether we should report on this at all,” Washington Post senior reporter Bill Tracy said while on assignment at a local dog show. “It’s enough of a tragedy without the press jumping in and pointing fingers or, worse, exploiting the violence. Plus, we need to be sensitive to the victims’ families at this time. Their loved ones were brutally, brutally murdered, after all.”

    Gabriel Hanna (64d4e1)

  18. oh my goodness I have SO many issues MR. mg

    happyfeet (a037ad)

  19. *Mr.* mg I mean

    happyfeet (a037ad)

  20. It’s a rare day when happyfeet and I are on the same page, but . . .

    I *WILL NOT* reward the GOP establishment’s betrayal of this nation’s founding principles by voting for a GOP-e Progressive-lite squish.
    ANYONE who is *for* amnesty DOES NOT GET MY VOTE.
    ANYONE who is pro-Muslim immigration DOES NOT GET MY VOTE.
    ANYONE who supports the current Federal compulsion to spend trillions of dollars that don’t exist DOES NOT GET MY VOTE.
    ANYONE who panders to Black lawlessness DOES NOT GET MY VOTE.
    ANYONE who kowtows to the FemiNazis DOES NOT GET MY VOTE.
    ANYONE who would surrender Free Speech to the execrable SJW’s DOES NOT GET MY VOTE.
    ANYONE who supports abrogation of my RIGHT to self-defense (ie gun control) DOES NOT GET MY VOTE.

    There are more — indeed there are; but I trust you get the gist of my objection.

    The current GOP is playing patty-cake with the Progressives-In-Power. While I understand the notion of “Support the political party which opposes the Democrats” . . . . I do *NOT* see much actual “opposition” taking place. I see “submission”. I see “cooperation”. I see “enabling”. I will not support a party that tosses aside everything it says it values for the sake of “compromise”. (You’ve noted that the “compromise” ONLY goes one direction, right?) The GOPe is to the Dem-Progs as Pres Obama is to Muslim tyrants: “We have to do something, let’s give ’em what they want plus a little-bit-more. Then they’ll like us and work with us.”

    No.

    A_Nonny_Mouse (3e934c)

  21. Y’know, I’m totally opposed to obama’s actions on immigration, but I’m not sure judges should be trolling through political speeches looking for this kind of evidence.

    matt d (d4aa6f)

  22. There are more — indeed there are; but I trust you get the gist of my objection.

    Well, A_Nonny_Mouse , you started off with six or seven reasons you wouldn’t vote for ANYONE who…! And there’s more? So you have resigned yourself not to vote for ANYONE who…you don’t deem perfect in your eyes. Good luck with that. Thanks for your help and dedication in pushing back the democrat-led coalition of leftists, anarchists, socialists and commies. With guys like you on our side we have nothing to fear.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  23. this will help hillary and the democrats in 2016 elections as it will keep reminding latinos why they hate republicans.

    beni (840fad)

  24. Everything with you is “hate”, Perry. You are really pathetic.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  25. Kind of like how ObamaCare wasn’t a tax when Obama talked about it, but then was a tax when his lawyers went before the judges. John Roberts shrugged off that lie.

    Close.

    It wasn’t a tax in Part I of the opinion, but it was a tax for Part II of the opinion.

    Judicial integrity went out the window with that one, and continued with the gay marriage decision.

    egd (1ad898)

  26. To those who believe that everyone who bitterly opposes Rubio (up to and including not voting for or donating to in the general) is a one-issue voter, that’s simply not true. There are plenty of reasons to oppose Rubio even if we ignore the fact that every single thing he authored or co sponsored in the senate had increased immigration and/or amnesty as a goal (his record on this goes far beyond his gang of 8 bill). So, setting aside his perfidy on this issue (he ran for the senate as anti-amnesty, but changed his tune within days of being elected) let’s look at a few other issues;

    He’s one of two GOPe candidates in the race. The other is Bush. For proof, look at who the GOPe donors who are defecting from Bush are going to, and who the GOPe types are supporting.

    He’s as almost as awful on foreign policy as he is on immigration. For example, he loudly backed Hillary’s war on Libya. And even Hillary Clinton is now against Obamatrade… but Rubio is for it. These two issues (and others) call into grave question Rubio’s judgement, and this is pertinent because Rubio himself claims that his foreign policy expertise is his strong suit.
    Here’s what he, a member of the Senate foreign relations committee, has to say about Hillary and Obama’s war on Libya (which resulted in Libya being run by islamists).
    http://www.weeklystandard.com/blogs/marco-rubio-libya-and-need-regime-change_556054.html

    Then there’s the issue of his use of a party credit card (which was supposed to be, per the law, for political expenses only) for personal expenses. His claim is he repaid these personal expenses. Even in the unlikely case that’s true, it’s still reprehensible judgment. If you or I tried that with a corporate credit card, we’d most likely be fired. The air of corruption this issue, and Rubio’s close association with Rivera, would cause in a general election would cost votes.

    The Senate: Rubio’s absenteeism will be an issue. It’s compounded by Rubio’s own words, “That’s why I’m missing votes. Because I am leaving the Senate. I am not running for reelection.” This paints him as a very untrustworthy, and downright narcissistic, public servant. This will not serve him well in the general, and is a made-to-order Democrat attack ad.

    Electability: Rubio, if the nominee, would lose. Why? Even setting the above issues aside, there is a huge amount of anger in the Republican party against the GOPe, so a GOPe (GOP Establishment) candidate simply will not be enthusiastically received by much of the party. This will depress R turnout, which will cripple such a candidate. Whether this should or should not happen is irrelevant. What is relevant is whether it will happen.

    Rubio appears to be the Republican that Hillary would like to run against. This is evidenced by the fact that the Hillary campaign is “leaking” the opposite.

    So, I’ve got to ask; why would any Republican back Rubio in the primaries when there are so many other choices?

    Arizona CJ (331a26)

  27. egd (1ad898) — 11/10/2015 @ 12:36 pm

    can’t help but wonder if Roberts was “blackmailed as some have suggested.
    Maybe not, but if not, they say the truth is stranger than fiction.

    MD in Philly (not in Philly at the moment) (deca84)

  28. It wasn’t a tax in Part I of the opinion, but it was a tax for Part II of the opinion. Judicial integrity went out the window with that one, and continued with the gay marriage decision.

    Those two decisions jolted conservatives into about five minutes of bright-eyed, sober comprehension.

    scrutineer (b7d257)

  29. Gabriel @17, I haven’t stopped reading the Duffel Blog entirely, but I had to cut way back on it for the same reason.

    US ‘Deeply Concerned’ After Chinese Jets Sink Navy Aircraft Carrier

    THE PENTAGON — Defense Secretary Chuck Hagel said on Sunday he was “deeply concerned” after Chinese fighter jets sunk a U.S. Navy carrier in international waters earlier this week.

    …Hagel said the death toll from the sinking stands at approximately 5,247 sailors dead, with 143 still unaccounted for.

    “This is a real tragedy, that, we hope does not damage our relations with the Chinese,” Hagel said.

    …At press time, President Obama told reporters that China may have crossed a red line, and he would seriously consider reducing trade with Beijing if it sunk another aircraft carrier.

    Read more: http://www.duffelblog.com/2014/09/china-jets-navy-flyby/#ixzz3r8PrV9Hg

    Their parodies just ring too true for my tastes these days. I can only take them in small doses.

    Sgt. Maj. Ruins Career By Publicizing Female Infantry Study Results Instead of Destroying Them

    QUANTICO, Va. — Sgt. Maj. Justin LeHew was notified this week that he will receive an other than honorable discharge from the Marine Corps, sources report, after LeHew recently ruined his career by releasing negative study results instead of destroying them.

    LeHew, the Sergeant Major of Marine Corps Training and Education Command, made the career ending move last month, by publicly releasing the methodology and results of a study that found gender-integrated infantry units performed worse than all male ones.

    …“His mistake was announcing facts,” Lt. Gen. Paul K. Van Riper (Ret.) said.

    …Pretending a problem doesn’t exist has become the DoD standard, according to senior defense officials…

    Read more: http://www.duffelblog.com/2015/10/sgt-maj-ruins-career-by-publicizing-results-not-destroying/#ixzz3r8QMD3ao

    Steve57 (bcaa38)

  30. 21. Y’know, I’m totally opposed to obama’s actions on immigration, but I’m not sure judges should be trolling through political speeches looking for this kind of evidence.

    matt d (d4aa6f) — 11/10/2015 @ 11:52 am

    Prosecutorial discretion is one thing. Refusing to deport illegal aliens on a case by case basis could fall within a prosecutors discretion. But handing out work permits and otherwise giving illegal aliens access to government benefits does not fall within prosecutorial discretion. It is a change to the law, which violates the separation of powers. The President doesn’t have the authority to do that.

    If Prom Queen is going to publicly brag about rewriting laws when the only coequal branch of government that has that power doesn’t bend to his/her/its will, I don’t see why judges should ignore those very public statements.

    A similar thing happened when the Illinois state supreme court declared that a change to the state’s pharmacy regulations violated Illinois law protecting individual medical professionals right of conscience. The state argued that the change in the regulations, permitting all sorts of business reasons allowing pharmacies not to stock or dispense Plan B or other aboritifacients, were neutral. But the governor at the time, Rod Blajoyevich, couldn’t help himself. He saw a reporter, and like to a moth to a flame he’d get in front of the microphones and scream at the top of his longs that the purpose of the change was to drive “judgemental” Christian pharmacists out of business.

    The court couldn’t ignore that. After all, Blagojevich directed the state pharmacy board to make the change.

    Then there was the time Obama gave a speech in the WH briefing room and expressed his anger that the armed services were letting too many men accused of sexual assault or abuse off the hook. A Navy judge promptly dismissed the charges against two sailors who were about to stand trial for sexual abuse/assault. He ruled that the President’s public statements as C-in-C constituted undue command influence and potential jurors would take it as direction to reach a particular outcome.

    When politicians holding office go out in public and make statements about what they did and/or are trying to achieve, such as bragging about changing the law by executive fiat, drive practicing Christians out of business, or see more convictions in military courts for certain offenses, they can and should be held accountable for those statements.

    But the silver lining for Obama in this case is that if there’s any court that can somehow construe Obama’s executive amnesty as mere prosecutorial discretion and consistent with existing law, while ignoring the fact that his actions go way beyond prosecutorial discretion and by his own admission are not consistent with existing law, it’s the Roberts court.

    Steve57 (bcaa38)

  31. *…The state argued that the change in the regulations, permitting all sorts of business reasons allowing pharmacies not to stock or dispense Plan B or other aboritifacients, were neutral.

    The state pharmacy board, under pressure from Blagoyevich, eliminated the conscience provision. Formerly the pharmacy regulations permitted a pharmacist to refuse to stock or dispense drugs for reasons of conscience. That change fell afoul of Illinois state law that protected their right of conscience. It definitely helped the plaintiffs’s case that Blagoyevich was telling the world that the rule change wasn’t intended to be neutral; Christians had no business being pharmacists (or health care professionals in general) in HIS state.

    Steve57 (bcaa38)

  32. Anything you say can and will be used against you in a court of law.

    If some clown gets on a public stage and loudly declares he’s going to violate the Constitution or the Law, like Obama does constantly and apparently Blago did as well, then it is imperative that the Court take special note of that and use it in its decision-making process.

    Obama’s desperately trying to be a dictator, and the Democrats are desperately trying to give him that opportunity. And too many Republicans are being subs to his dom.

    John Hitchcock (b561f9)

  33. beni,

    I’m curious about you. Are you black or hispanic? What sex are you? I asked you on another thread but no answer yet.

    Gerald A (949d7d)

  34. Gerald, Perry won’t tell you. He’s a white octogenarian from Delaware whose parents pulled him out of a neighborhood that was getting too dark, to live in an all-white neighborhood. He has since NOT moved back to the mixed neighborhood, but stays in his white neighborhood.

    John Hitchcock (b561f9)

  35. You can bet your bottom dollar that the FBI investigators are paying very close attention to Hillary!’s constantly changing statements about emailgate. As well they should.

    And I wasn’t really disappointed the LHMFM declared her the “winner” after her Benghazi testimony. Because Gowdy’s committee doesn’t have the power to actually do anything to her or anybody else for that matter. And I hate to break it to everyone, but lying to the public while not under oath isn’t a crime. So even though Hillary! was exposed as a liar, and the video story was a lie from the start, that’s not the end of her campaign for the Democratic nomination. And lying to Republicans, and the public at large, is what Democrats look for in a candidate.

    It’s why Sanders won’t be the nominee. Democrats know they have to lie about being totalitarian socialists, and Sanders is out of the closet about it. TMI.

    The FBI, on the other hand, can do something about Hillary! and her lies. Lying to Congress is a crime, as is lying to investigators. So like the judges I mentioned in my earlier comment, the FBI investigators damn well should be paying attention to Hillary! Clinton’s public statements. They’d be derelict if they weren’t.

    Steve57 (bcaa38)

  36. Patterico’s quote from the opinion above confirms the conventional wisdom that an advocate can’t win an appeal by making a brilliant oral argument — but he can damn sure lose one.

    All three Fifth Circuit judges on this case, coincidentally, are based in Houston. I don’t know Judge Jerry Smith other than by reputation. I clerked for the dissenter, Judge Carolyn King, in 1980-1981. I tried a week-long jury trial before the third member of the panel, Judge Jennifer Elrod, in 2006, shortly before her appointment to the Fifth Circuit was confirmed. These are three very good appellate judges, and their split votes will surprise none of their colleagues. I will be very surprised if the Fifth Circuit votes to rehear this en banc; rather, the liberal wing of the Fifth Circuit will likely be content to permit Judge King’s dissent to speak for them collectively and effectively in trying to urge the SCOTUS to reverse.

    Beldar (fa637a)

  37. I’m curious about you. Are you black or hispanic? What sex are you? I asked you on another thread but no answer yet.

    I’ll field that one for you Gerald A, since “beni” will not. His name is Perry and he hails from Lewes, Del.. He’s an 80ish white, agnostic, far-left extremist male with a red-diaper baby past and a lovely gated community present. He specializes in “hate”. He does not disagree with Republicans, Christians, Conservatives, free marketers etc, he hates them. In short he’s a self hating American of White Privilege background full of guilt and self loathing, a typical contemporary leftist.

    On another blog he once threatened to accuse me of felonies and threatened another poster’s job. He was banned from that blog because of this.

    This is not “confirmation bias” as I’ve met and dined with the guy. It’s first hand.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  38. And I think the SCOTUS will grant certiorari and agree to hear the case on an expedited basis — and would have, regardless of which way the Fifth Circuit ruled.

    We’re back to relying on Mr. Justice Kennedy not to go all wobbly again.

    Beldar (fa637a)

  39. Command and control will survive but will anyone be one the phone at the other end?

    http://www.zerohedge.com/news/2015-11-10/deep-state-unelected-shadow-government-here-stay

    Whitehead used to be a government apologist. Wonder what turned him?

    DNF (755a85)

  40. At this stage, this is solely a procedural issue. The only live issues are standing to sue and when can an injunction be issued. The merits of the case only come in in terms of estimating how the case will eventually be decided.

    The issues are:

    1) Standing to sue (where the court was clearly striving to reach a conclusion.)

    2) Whether the state is very likely to win on the merits (the issue is violation of the Administrative Procedures Act – and basically is: Did President Obama create a new regulation, or not? Because if he did, it wasn’t the right way. The government’s claim is that what President Obama did does not amount to a regulation, i.e., it’s just informal guidance, enforced by the possibility of official discipline, and does not give any cause of action to anyone who is treated contrary to his instructions, as a true regulation would, and therefore the APA does not apply.)

    3) Irreparable harm to the state (reaching here too – it is pretty irreversible and irreparable, but there’s a big question as to whether there is any harm to the state. It has to be more than trivial. Maybe it can be trivial to get standing, but trivial effects probably should not cause an injunction to be issued. The court I don’t think demonstrated that the requirements for standing are the same as the requirements for an injunction. Theer are great policy questions here, but to say there is more than trivial harm, you have to side with one side of a policy debate. Here’s where other states can come in and argue there is harm from not letting this go through.)

    By appealing, the Obama Administration is actually postponing any possible decision on the merits, in favor of a longshot chance to reverse the injunction.

    The Supreme Court is probably actually unlikely to take the case, unless maybe other states intervene on the other side, unless it wants to make a ruling on just what are the grounds for an injunction. If two states sued each other, maybe it could decide the whole thing.

    Sammy Finkelman (3a0a59)

  41. Here are your tea leaves, your chicken entrails, read and weep:

    http://www.breitbart.com/london/2015/11/11/watch-anti-migrant-video-going-viral-across-europe/

    Crack Whore cannot believe Merkel has outdone his sorry azz and is looking to one up her.

    DNF (755a85)

  42. Arkin is an apparatchik, speaking of which look where kashkari ended up, winning with tiger blood.

    narciso (ee1f88)

  43. An apparatchik who slimed general boykin, so what is their solution to a mass casualty event.

    narciso (ee1f88)


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