If you wonder whether Monday's Fifth Circuit Court of Appeals decision blocking the implementation of President Obama's immigration actions held any merit, wonder no longer. Former New York Times Supreme Court reporter Linda Greenhouse reveals just how blatant a miscarriage of justice the ruling was, from its inexplicable delay down to its dubious reasoning.
The majority opinion is as cynical an exercise of judicial authority as I can remember — and no, I haven’t forgotten Bush v. Gore. 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.” Chief Justice John G. Roberts Jr. could hardly have said it better himself. In fact, he did say essentially the same thing, in his dissenting opinion last June in the same-sex marriage case.
Here’s a glimpse at the points she hits:
1. An "untoward delay in issuing the opinion"
This was supposed to be an “expedited appeal” to be decided within 60 days, and as the weeks and months went by, suspicions grew in the immigration advocacy community that the judges were deliberately running out the clock on the Obama administration’s ability to get an appeal up to the Supreme Court in time for a decision during the current term.
2. Alternative names for State of Texas v. United States
Greenhouse floats an alternate name for the case that the two appeals court judges clearly wish had been a reality: “Twenty-six Sovereign States v. A Man Called Barack Obama.” Here's Greenhouse quoting from their majority opinion:
“The dissent, throughout, cleverly refers to the states, more than forty times, as the ‘plaintiffs,’ obscuring the fact that they are sovereign states [while referring to the defendants as the ‘government.’ ]” Sorry, Judges (Jerry) Smith and (Jennifer) Elrod, the 26 states are the plaintiffs, and it is standard judicial practice to refer to the federal government as the government.
3. Executive branch use of "prosecutorial discretion" in immigration matters was meant for a president named George W. Bush, not Barack Obama
Greenhouse notes that the dissenting Judge, Carolyn Dineen King, cried foul on the notion that President Obama somehow exceeded his executive authority in applying what's known as "prosecutorial discretion" when deciding whom to deport (because we can't deport all undocumented immigrants, even if Donald Trump says we can).
The exercise of prosecutorial discretion, Judge King observed, is not subject to judicial review. She also noted that Congress in 2002 delegated to the Department of Homeland Security authority to “establish national immigration enforcement policies and priorities.”
If you are a lawyer or an immigration activist reeling from the Fifth Circuit decision, don't miss reading the full analysis. As with anything dealing with the law, some of the legal principles aren't as easily accessible to regular folks. But Greenhouse's overarching message—that conservative judges have now wholeheartedly embraced the type of judicial activism they once railed against—comes through loud and clear. And they are now continually deploying that judicial activism to block executive branch power, something that many conservative activists once argued should be muscular and unforgiving. Until Barack Obama got elected.