When Barack Obama issued the orders known as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) on November 20, 2014 liberals were giddy with the power of “I have a pen and a phone” as Mr. Obama once bragged; their hero could simply write his name and voila! Instant law! But in February of ‘15 a Federal judge, Andrew S. Hanen issued a temporary stay on the Obama Executive Order, forcing the Administration to appeal. The case eventually made its way to the Supreme Court, which deadlocked 4 to 4 and wound up affirming the original court order.

Now that a lawless federal judge has issued a stay on Donald Trump’s temporary entry ban to citizens of unstable or terrorist-sponsoring countries, an order that Mr. Trump took great pains to bring into compliance with a previous stay that was upheld by the notoriously liberal 9th Circuit Court of Appeals, the question arises as to whether he had the authority to do so. Is Mr. Trump out of control or are the courts? Strangely enough, the very same people claiming Trump lacks the authority to do this held a very different opinion when Trump’s predecessor was in a similar position. Strange how their arguments have flipped.

“He could not have forced Johnson to promulgate a program, however; in the face of impasse, Obama would be able only to fire this secretary and try to appoint another. When Obama refers to “his” powers or “my” actions, he mainly insures that all the opposition to the program, both legal and political, will get focused with laser-like intensity on him, rather than Johnson.”

“Here’s the thing: No one should have been confused about “whether the president had lawful authority to [promulgate DAPA].” The president did not—but that’s legally irrelevant. Obama’s legal authority is not at issue in the case. Really. Truly. Not even a little bit. Obama did not take the legally relevant action; Secretary of Homeland Security Jeh Johnson did. It’s a program of which he is the legal author and for which he, not the president, is legally accountable. Politically and institutionally, this is a critically important difference.

Writing in The Atlantic in June of 2016, Peter M. Shane made the following argument in favor of the Obama program:

Liberals rode to the rescue as soon as the first restraining order was issued.

Obama’s executive order was struck down not because he did not have authority over U.S. immigration policy but because he was openly violating laws duly passed by Congress. The courts rulings were based on the so-called Take Care Clause, which requires him to faithfully execute the laws of the United States. His motives did not enter into it.

“The Obama administration has argued that the president has the authority under the Constitution to allocate resources among enforcement priorities, especially in the area of immigration law, where historically, and as a result of the foreign policy implications of immigration, an unusual amount of power is given to the president to set priorities. Obama, like all his predecessors, has sought to use limited resources given him by Congress to deport violent and dangerous undocumented immigrants rather than hardworking and peaceful ones.”

If Trump were to do that he could be impeached. That is their hope and their trap.

(By the way the DOJ admitted that the Department of Homeland Security violated the injunction anyway.)

The reason why the Left could make this argument is that the law does not direct the President to make these determinations but “the Director” which essentially means Obama is not in direct control of the policy so he is not violating the law. Cute.

Same voices defending Obama’s absolute right to determine immigration policy are now screaming at President Trump

Yet strangely enough the same voices defending Obama’s absolute right to determine immigration policy are now screaming at President Trump .

According to Posner:

“The deeper problem with Judge Hanen’s reasoning is that, as he explicitly acknowledges, the president really does have the constitutional authority to decide to go after violent felons and leave everyone else alone.”

So the President has the authority to decide who may be a danger and stop their entry into the United States. Isn’t this precisely what Trump is doing?

As I have chronicled in Canada Free Press the President clearly has the legal authority and duty to make the determinations of who gets in. The court rulings against Mr. Trump’s orders are based entirely on Trump’s campaign rhetoric - which should not matter in this issue anyway - and yet if we are to follow the logic of Peter Shane the courts had absolutely no right to even consider Trump’s thinking since it would rather be the work of DHS Director, not Mr. Trump.

And the Obama Administration’s arguments in the DAPA case directly repudiates the argument being made against Trump. In the DAPA hearing , Justice Stephan Bryer did not think the individual states had standing:

“Justice Stephen Breyer brought the conversation back to the matter of standing. He noted that the Supreme Court rejected analogous cases in 1923 involving claims that the federal Maternity Act interfered with states’ authority. Keller responded that unlike the 1923 cases, which pressed claims based on taxpayer standing (a theory long rejected by the justices), DAPA imposes an injury on Texas’s sovereign interests. Breyer countered that this theory would allow states to seek to invalidate numerous federal laws.”

Strange that the liberals on the Court all supported the notion that the individual states did not have standing then. Granted, SCOTUS has not yet heard the Trump case, but how much does anyone want to bet that those same Justices will rule the states DO have standing? In fact, I strongly suspect the Court will see the liberal members make a 180* turn on this issue.

What must be remembered is that Obama wanted to give legal status to invading aliens who wanted to colonize America while Mr. Trump is trying to protect the security of America and her citizens. Obama was acting out of political and perhaps personal motives while Trump is actually doing his job, fulfilling his oath of office. His personal attitudes have no place in the rulings

Simon Lazarus argued in the New Republic that:

“...the Court’s response to the Fifth Circuit’s DAPA decision should be straightforward. It will accept review and dismiss the case on the ground that the party that filed it, the state of Texas (on behalf of 25 similarly Republican-led states), has asserted no injury that gives it legal “standing” to get its grievance into court. The alleged injury on which the lower court judges relied to allow Texas to challenge DAPA is that, under Texas law, recipients of deferred action status may obtain state-subsidized drivers’ licenses, costing the state $130.89 each. ...But, as numerous experts have noted, well-established doctrine bars state or local entities from seeking judicial redress simply for incidental, self-engineered (Texas is free to repeal its subsidy) monetary loss from a federal policy change, certainly not on such a trivial scale. From the standpoint of defusing perceptions of politicization, retaining barriers to standing for Texas’s DAPA challenge will have a more systematic—and consequential—impact than the rejection of last term’s attempt to cripple the ACA. Ruling otherwise will license state or local politicians to put virtually any beef with the feds, however politically driven, on the docket of a convenient lower federal court, and, ultimately, the Supreme Court. Government programs at all levels could be threatened with gridlock—just as national immigration enforcement policy is gridlocked by this lawsuit.”

So why is this same logic not applicable now? If Texas didn’t have standing then why do states have it now?

Notice, too, how the Left used the financial arguments against DAPA in the Trump case. The two situations are not analogous; Texas was being overrun by hordes of illegal aliens - many of them children - and were being forced to subsidize them. The same is in no way true of the Trump policy. Simon Lazarus called the invasion “trivial” yet how much more trivial is the money lost because a few citizens of suspect countries aren’t coming?

And it was not just liberal news people who supported Obama’s DAPA plan; over 200 Democrats signed an amicus brief in support of Obama’s right to set immigration policy. According to the Politico story:

“Democrats are insisting that Obama is not violating the “Take Care” clause because the executive actions are well within the authority of Homeland Security Secretary Jeh Johnson, whose sprawling agency oversees immigration matters.”

Yet those same Democrats have ripped President Trump for his exercising Presidential authority. Strange.

In the final analysis, the very arguments that were unsuccessful in the DAPA case are far more applicable in this instance. The federal statutes are entirely on Trump’s side, and the essence of the argument against Trump boils down to schoolyard taunts that he is a big meanie who hates Muslims. We must ask why Barack Obama was seen by the Left as upholding the law when Donald Trump - who actually is - is treated worse than Fidel Castro. So many of those opposing Trump like to wear Che’ Guevara tee shirts, after all.