America’s largest criminal alien sanctuary is not San Francisco, it is the United States Capitol building. Conservative outrage at U.S. Supreme Court Chief Justice John Roberts over two immigration-related opinions during the week of June 15th is misplaced. Congress is the culprit.
On June 15, 2020, in U.S. v. California the Supreme Court declined to hear a federal immigration-related petition for a preliminary injunction against California’s efforts to obstruct federal immigration enforcement. The U.S. sued to enjoin several California laws, claiming the subject matter they touched had been “pre-empted” (superseded) by federal immigration law.
Lower federal courts agreed with our government in part but declined to find that the California law barring local police disclosure of addresses and release dates to federal immigration officers is pre-empted by federal immigration law. Without comment, the Supreme Court declined to reverse the relevant lower court ruling, so the issue will be litigated in the months ahead.
On June 18, 2020, in DHS vs. California Regents, the Supreme Court ruled that the President’s effort to end the illegal Obama DACA and DAPA programs for border violators was “arbitrary and capricious” under the Administrative Procedure Act. (DACA: Deferred Action for Childhood Arrivals; DAPA: Deferred Action for Parents of Americans and Lawful Permanent Residents).
When a court finds that government action was “arbitrary and capricious” generally the government must go back to the drawing board to revise its rationale. Far more significant — at least to me — in the DACA matter, however, was Supreme Court comment that work permits, Social Security eligibility, and Medicare coverage that President Obama conceded to DACA participants are interests which “courts often are called upon to protect.” Come again? Practically speaking, the Supreme Court held in this case that border violators have legally-protected claims to work permits, Social Security, and Medicare.
This is madness. But the illegal immigration monster represented by these two U.S. Supreme Court opinions cannot be charged to the Chief Justice. Through commission and omission over decades, Congress created that monster.
Federal pre-emption of state law is at the heart of federal lawmaking involving most state government actions. How, then, could it be argued seriously in the federal courts — let alone decided — that the federal Immigration and Nationality Act does not pre-empt a California law directly interfering with federal immigration enforcement? The twofold answer: Because Congress wrote a weak statute on federal-state law enforcement relations on immigration, and then did nothing to beef it up when California set out to block it. The federal law in question was enacted in 1996 by a Congress in Republican hands. Newt Gingrich was Speaker.
Now turn to DACA and border violator access to work permits, Social Security, and Medicare. DACA was not even a statutory program. Rather, it was the misbegotten fruit of a 2012 internal Obama Administration memorandum at the Department of Homeland Security. During the 114th and 115th Congress — four years in a row, from 2015 to 2019 — Republicans controlled both houses of Congress. A Republican was in the White House during the 115th Congress. Yet Congress never moved a muscle to undo DACA legislatively.
One of Congress’s most serious offenses against the American people has been its dereliction of duty on immigration. Last week the Supreme Court provided two reminders. There is no flaw in our immigration system that cannot be remedied, repealed, or improved by congressional action. But leadership is absent on both sides of the aisle and on both sides of Capitol Hill. Blaming the White House or charging into a federal court must never absolve Congress of primary responsibility for broken national immigration policy.
We can’t blame Chief Justice Roberts (or Donald Trump) for our nation’s immigration mess. Last week the Supreme Court tossed the rotting, radioactive immigration potato back to Congress, with its opinions on DACA/DAPA and California’s interference with federal immigration enforcement. Under the Constitution, this is precisely the correct approach. The Court’s message to Congress is clear: You created this mess. Now fix it. That message is constitutional and quintessentially conservative.