The Federal Courts Engaging in Foreign Affairs
Susie Madrak at Crooks and Liars calls it; “SCOTUS is throwing down the gauntlet that this president’s (Biden, in case you forgot) power derives not from the law, but from the conservative majority’s feelz about what a Democratic executive should or should not be allowed to do.
Just a bit of history, this was not a Trump Executive Order which Biden eliminated as he did many of Trump’s and Trump did with Barack Obama’s Executive orders. For the record, a definition of what an Executive Order is.
Executive Orders are issued by the White House and are used to direct the Executive Branch of the U.S. Government. Executive Orders state mandatory requirements for the Executive Branch, and have the effect of law. They are issued in relation to a law passed by Congress or based on powers granted to the President in the Constitution and must be consistent with those authorities.
Executive Orders
This was a policy put in place by the Department of Homeland Security under Trump and eliminate by the Department of Homeland Security under Biden. The Texas federal court claims the Department of Homeland Security committed some type of legal violation when it rescinded a Trump-era immigration policy. The Court has not identified what the violation is.
The basis for SCOTUS rejecting Biden killing a department policy comes from a 2020 ruling by SCOTUS blocking Trump from killing the DACA program.
On June 15, 2012, the U.S. Department of Homeland Security (DHS) announced that it would not deport certain undocumented youth who came to the United States as children. Under a directive from the DHS secretary, these youth may be granted a type of temporary permission to stay in the U.S. called “deferred action.” The Obama administration called this program Deferred Action for Childhood Arrivals, or DACA. This page provides guidance on how to apply for DACA, renew DACA, and other important information on DACA.
DACA – National Immigration Law Center (nilc.org)
Most recently a Federalist selected and appointed by Trump in 2019, Judge in Southern District of Texas ruled against President Biden, killing his reversal of a policy put in place blocking any aliens from entering the US while awaiting decisions from U.S. Department of Homeland Security as to their status.
“By September 3, 2021, the Government must file with the Court the legal standard it is abiding by with respect to the detention of aliens covered by or subject to 8 U.S.C. § 1226(c)(1)(A)–(D) given the Court’s injunction of the Memoranda at issue in this lawsuit,” Tipton demands in the final pages of his opinion–referring to the statute that governs detention of undocumented immigrants who are subject to deportation or not allowed to enter the country at all.
Trump Judge Overturns Biden Memo, Crowns Himself King Of ICE | Crooks and Liars
Ian Millhiser at Vox :
The Biden Administration asked SCOTUS for a “stay,” which Justice Alito, writing for the majority conservatives, rejected it. In it, Alito:
suggests that the Department of Homeland Security committed some legal violation when it rescinded a Trump-era immigration policy, but it does not identify what that violation is. And it forces the administration to engage in sensitive negotiations with at least one foreign government without specifying what it needs to secure in those negotiations.
The Supreme Court’s immigration decision on Trump’s “Remain in Mexico” policy, explained – Vox, Ian Milhiser, August 24, 2021
Justice Alito is basically saying we denied Trump with DACA so we are going to deny Biden from allowing aliens to stay in the US while awaiting status decisions. If the Biden administration is to follow the Texas court order and SCOTUS decision, it has one week to complete the negotiation with Mexico. Neither does Alito tell the Biden administration what it must obtain from Mexico.
Again Ian Millhiser at Vox explains why the federal courts interfering in foreign affairs policy is unusual.
One of the most foundational principles of court decisions involving foreign policy is that judges should be extraordinarily reluctant to mess around with foreign affairs. The decision in Texas defies this principle, fundamentally reshaping the balance of power between judges, and elected officials in the process.
The Supreme Court’s immigration decision on Trump’s “Remain in Mexico” policy, explained – Vox,, Ian Milhiser, August 24, 2021
But is this really the highest court of law or a bunch of hacks attempting to engage in foreign relations or are they attempting to sway the politics and political outcomes of a nation?
Run
on the face of what is presented here it looks like the Court using its power to get away with anything to shape the policies of the United States according to its own…ideological is too polite a word…bent.
but we already knew that.
a couple of years ago an otherwise intelligent commentator on this blog asserted that Chief Justice Taney decided Dred Scott correctly based on the fugitive slave clause in the Constitution. but Scott was not a fugitive slave, he was claiming that he became free when he was taken into a state which had outlawed slavery.
i mention this to show that Judicial overreach is not new and is very dangerous. but even Lincoln had no power to overrule the SC. it took the brilliant leaders of the South to provide the legal basis for doing that.
meanwhile it pays to be none too sure when you are really really sure your opinion is “correct.”
Coberly
Beverly wrote on this in 2014, NDd did similar in 2018, and Ken Melvin did the same more recently. All three were excellent recitals of the issues with SCOTUS. As JackD has stated just moments ago, Congress does have the power to limit SCOTUS jurisdiction. I wonder if we have a Congress installed which would have the courage to do so given much of it has failed to indict a rogue president who attempted to incite rebellion while the EC votes were being certified.
My commentary is not as elegant as what NDd (2018) presented nor as knowledgeable as Beverly’s legal composition was in 2014. My words are more of a complaint about the courts, Congress, and citizen lackadaisical attitudes. The power does rest with us.
Run, there’s really never been much dispute about the court being political, regardless of Chief Justice Roberts’ pretense to the contrary. They have to be. a little careful because of the Congressional power to limit their jurisdiction. With a 6-3 right wing court, these types of decisions are not surprising.
Jack:
I believe people are becoming more annoyed with government and this is just another display of the court branch giving way to other interests not aligned with citizens. Thanks for the input.
I simply — very simply — don’t understand how, if the president can issue such an order, the president (doesn’t matter which president) cannot issue the opposite order. An executive order is not a law — it is a policy.
Trump could have reversed the policy — couldn’t he have? So, why can’t the next president? ???
Ron
I don’t know as much about the Court as you, Beverly or NDd, so elegant or not, tell me how the Congresss can limit the Court. Certainly we have seen breath taking decisions since 2020. We saw some before.. but even Dred Scott was not quite as flagrant. I suppose the South might have thought Brown v Board was pretty flagrant, so I suppose I at least ought to be a little more tolerant.. but I’m not.
Denis,
I agree with you, but I am not hearing any of our leaders saying “just wait a minure here…”
Could be the whole country has gone mad.
Coberly,
Wikipedia contains a pretty good description of the provisions of Article III of the Constitution governing the federal courts. The Supreme Court’s appellate jurisdiction can by limited by Congress and lower federal courts are established (and presumably could be abolished) by Congress.
Coberly,
Best way to democratically fix the SC problem is to provide right to petition for popular referendum that could overturn a decision, which of course would take an amendment, which will never happen although it makes a great deal of sense. The Constitution was an elitist approach to republicanism that is now all but impossible to fix because of the deep fracture of civic responsibility between the Left timidly clutching its pearls and the Right boasting of its individualism which is nothing more than anarchism in drag.
?
run
i think ron was thinking of the absolute freedom shouted about by the people who have been misled by their favorite politicians, who, of course, don’t believe in anyone’s freedom except their own. they are like somone putting a choke chain on a dog saying, “this is for your protection and mine,” and the dog thinks he is saying, “lets go chase a rabbit.”
run,
In an individual psyche, then the occurrence of a unfinished situation of any important relevance creates a neurotic response or, in Gestalt terms, a hole in the personality or incomplete Gestalt. When a society experiences the occurrence of an unfinished situation, then there is an analogous social disorder to the neurotic response of the individual psyche. A plebiscite to resolve the division by acceptable democratic means would be far more effective towards allowing society to move on than the indefinite resolution by courts, even better than representative means if we had such courage among legislatures. Worse by far though would be the persistent aggregation of such unfinished social conflict that society lost faith in its leadership and developed a sense of betrayal. In the individual psyche that betrayal by parental authority incubates antisocial behavior. We appear to be on the cusp of societal sociopathy. We need to start settling up on unfinished business in a manner that is recognized and accepted by the vast majority of citizens. The alternative is to continue making ourselves evermore crazy with the passage of time.
unh, that was 2000 Bush v Gore, not 2020. how time flies.
JackD
thanks. whenever I look at a SC opinion it always seems to me to be the opposite of what I would have decided. I suppose the SC could look at a law Congress passed limiting their jurisdiction and call it unconstitutional. I’ll look at the Wiki anyway so I can wonder why the Congress hasn’t done this already. my guess is that it would take 60 votes in the Senate, which we have not got.
I did read somewhere that FDR pretty much ignored the SC before the switch in time that saved nine.
I was really shocked when the border patrol would not let a sitting Senator inside their facility to look around. I guess I just don’t understand these things. of course i think that was nothing compared to the finding that Guantanamo was outside the jurisdiction of the Constitution as were illegal combatants defending their own homes, and some poor teenager who got twenty years for fighting the US by standing on the ground watching the B-52’s fly by.
That switch in time that saved nine was after an unsuccessful effort to pack the court. He scared them because they realized the Congress might not put up with their “obstructive” decisions indefinitely but those were different days with significant Democratic majorities.
JackD
i know about the court packing gambit. i don’t know why FDR felt he could no longer get away with ignoring them. the switch in time remark sounds like the Court changed its mind because of the court packing threat, not that it came after the threat proved unsuccessful.
I think the difference in the times is FDR himself, a “second rate mind..” who outsmarted everyone. also, he the new deal was the real deal, recent Dems haven’t been.
He didn’t feel he could get away with ignoring them because Congress obeyed their holdings, refusing to appropriate funds for forbidden programs, for example. The Court’s changed opinions began after the Senate turned down FDR’s packing effort. I think, just my opinion, the Court recognized that the danger was still there.
It is still a mystery to me — am I missing something — why a president can issue an executive order — and then cannot rescind it — or why a succeeding president (SAME THING ISN’T IT???) cannot rescind it.
Repeat: an executive order is policy not law.
Run
my comment above addressed to Ron apparently should have been addressed to you. Please share your commentary however “less elegant.” my own typos are not elegant.
Ron
problem for me is I am enough of an elitist to believe in slowing government down to make it less responsive to short term public opinion. of course that “conservatism” crashes on the rocks when the “elites” turn out to be a coup in disguise to establish permanent absolute rule by the moneyed few.
Coberly,
Well, understood and no telling.
In a world where the republic might slightly resemble a democracy, one empowered to break through hotly contested issues rather than routinely rule by plebiscite, then so much would be different from this world that any assumptions and conclusions that we might draw from our experiences in this status quo world would be unfounded. The deep fissures in civil society are the result of two centuries of divide and conquer adversarial politics during which time that political triangulation has been refined into an art form. This was a necessary step for transitioning from a hereditary aristocracy to an aristocracy based on economic advantage. This is not just a US problem, but rather a global ideological conflict that constitutes the playing field for competition among political and intellectual elites. The methodology of instructing the young in thinking about the world appropriate to these ends goes back at least as far as the Pharaohs and the Holy Roman Empire. The source of power changes over time, but the game of maintaining power remains the same.
Certainly the powerful know more than we do. That is why they are powerful. But our equals are our competitors. So, we can trust the powerful, but must mistrust our equals. Neat trick.
Ron,
Yeah, pretty much. That’s the problem.
I guess we could all emigrate to America. I hear it’s the land of opportunity and all men there are created equal. Of course, even Socrates didn’t think he’d be able to master the language.
Back in the old, old days, I hear, it wasn’t so much a case of the haves vs the have nots. Nobody had much, except in the sense that your neighbors had something you did not have… not “more” per capita, but just that they had it and you did not. So you and your elites agreed as one to go over and take it away from them. Or they and their elites agree to come over and take what you had away from you. And you fought, patriotically, to kill them before they killed you. We still have a lot of ideas left over from those days. Which don’t really work anymore, except that some of us have figured out how to use them to get us to do stuff that makes them rich and powerful.
We are the conquered. Essentially slaves in our own country to our own leaders who have figured out that persuasion is more effective and cheaper than chains and whips.
Oh, yeah, that emigration thing: I heard that that started out in the old, old days when a young man, or several young men, in the tribe got fed up with being told what to do by the old men. So they took their wives and children and moved out. Setting up camp down the road a bit where they would become the new tribe I spoke of earlier, eyeing what we had and thinking how much better it would be if they had it.
Coberly,
Yep. All we can do is continue voting for the lesser evil, teach our children and their children’s children’s children, and hope for the best. Also, it does not hurt to enjoy the life we have since the proprietors have a no return policy.
Ron,
What?! you mean I can’t get my money back?!
I’m gonna write my Congressman. I’ve only had this one about eighty years and it’s already dented and scratched and getting hard to start. And the wife attachment fell off years ago. (If you think I’m a crabby old man now, you should have seen when I was younger and didn’t know nothin yet.
Glad to see we don’t disagree yet about anything we need to settle at Weehauken. Wouldn’t do to argue with them folk though. They’s all gonna get their money back.
Ron
@3:41 pm
wow! takes a lot of courage to talk like that in public. sounds about right to me though.
I just had to try to convince someone on line who thought he was the last word on Social Security that, no, actually I am the last word. It didn’t go well. Right now we have about 80 million people screaming at an other 80 million people that they are the last word on vaccination , while of course the other 80 million are screaming back at them, no WE are the last word. It isn’t going well. Physical force isn’t being tried yet, but financial coercion is. That might produce resentment that will last a few generations.
I believe you are saying something like this.
(I have some fear the Left is doing a bit of overreaching in other areas right now. Rather than accept significant but limited gains they can build on when they show their policies work, they are going out on a limb demanding policies that are bitterly opposed, and which will bring down their house if they don’t succeed as advertised. Worse, their proposals are not especially well thought out. But I am preaching to the choir…their choir.)
Coberly,
Yes sir; you are correct. I really do not care so much that we might use coercion as we might use coercion and still not be able to reasonably prove that the policy worked. Of course the choir does not require much proof and always believe that they have been reasonable.
Coberly,
BTW, as to the psych specifics, then sociopathy is a developmental pathology of personality formation in the maturation process that depends largely upon the genetically programmed periods in which triggers initiate an imprinting process. The primary period for empathy, acceptance of authority, and social bonding is between ages 2 to 4, with the primary caregiver the controlling input. This is when the child takes on individual responsibility to obey the caregiver and establishes mutual trust – or not – the later being the source of the pathology. Emergence of puberty is the other main event for imprinting social bonds.
The trigger and imprinting process in the development of personality is deeper, more profound, and more lasting than any stimulus response conditioning that is a natural part of behaviorism and likely more powerful than the unnatural use of stimulus response conditioning as well (i.e., everything from torture to brainwashing for which we can thank B.F. Skinner). However, consciousness is not compartmentalized (although there are psychoses which make it seem as it were) and the similarity between stimulus response and triggered imprinting is not accidental, the latter being an adaptive extension of the former. IOW, lizards likely have more stimulus response reactions than triggered imprint personality developments. I cannot be certain though. Better ask a lizard.
Ron
I am not an absolutist in my faith in non-coercion.While it is nearly certain that forcing other people to do things you want is exactly what they think it is (a violent attack on them) and what you would think it was if they did it to you, and an almost certain fact that it will backfire or lead to unintended consequences (such as a culture where it is the norm), that doesn’t mean if I see somone beating your grandmother I will not use force to stop them… or someone waving a gun in a crowded theater… really waving a gun, not a metaphorical gun.
It is a problem with no 100% solution. But all I see is lynch mob mentality. And I saw too many movies about that to sit back and watch.
Ron,
I am not current (never was) with what psychologists say about all this. being a real behaviorist, i look at the behavior and don’t worry so much about the theory. not to say that theory is uninteresting or unprofitable.
if i remember, something like “conscience” develops gradually.. or at least the things kids say over time about prosocial behavior becomes more complex and abstract over time. i would guess this has to be taught… because it takes different forms in different societies or sub societies. but maybe it’s just a product of growing and observing more things. trouble is, a real sociopath is hard to detect before he has your money, unless you are married to one or work for one.
i was always the kindest kid on the block, but when i look back it hurts my conscience to see how totally unaware of the needs and feelings of other people i was. the other kids in the neighborhood were quite aware of my feelings and went out of their way to hurt them. what does that tell us?
some people right here in river city think they are being socially responsible by hurting people they think are not socially responsible. (i am quite capable of that feeling myself.) does that tell us anything?
Coberly,
“…does that tell us anything?”
[Sure. People are afraid of dying. When someone says that they were embarrassed to death by something then they are lying. Death is way worse than embarrassment, regardless of what my wife says. She just knows a lot about the latter and almost nothing about the former. She has by now lost both her parents and her oldest sister and her best friend, but she has never seen the dozens of dead piled up along a wall like cordwood.]
Coberly,
You are correct that conscience develops gradually over time with experiences. More specifically though conscience develops from empathy, which in turn proceeds to inform our social relationships, including our response to peer pressure that emanates from our longing for social relations and our desire for acceptance.
Consciousness is something else, simply self-awareness, and does not require empathy nor desire for acceptance from others. Even a sociopath has consciousness as that is the house in which all personality resides.
Coberly,
I was neither the kind kind nor the mean kind. I was friendly, but guarded, neither sensitive nor completely insensitive, but I was more concerned with sticks and stones hurting me than words. I got into water over my head at about age 5, but was saved by my dad. Before that I had helped Aunt Minnie slaughter hens by picking up the decapitated after they stopped flailing about and dropping them into a tub of scalding water. After she plucked them, then I removed the tiny pin feathers. At dinner she would reward my labor with a plate full of fried chicken feet. About that time, then I saw a steaming calf birthed while perched by Uncle Cletus on his tractor. I saw his hound dog birth a litter of pups. By the time I started school I had helped skin small game and had learned to shoot a small bore rifle by supporting it against a tree trunk. Later in high school biology class my classmates were awed by how comfortably that I dissected a snake. As an adult I have grossed out many friends when they say me clean a still squirming shark. If one is planning to eat the shark, then they should gut and skin it immediately after catching it to avoid shark urine building up in the skin which would impart an ammonia taste to the flesh.
I grew up to be like any man would have been just a few decades earlier in the US, but vastly different than our present day over-civilized urbanized contemporaries.
plenty of lizard people in business and government. they won’t give you a straight answer.
Ron,
my brilliant essay on the subject was just erased by AB.
Ron
some of my best friends are carnivores.