rule of law
A win for the rule of law:
A federal appeals court upheld an injunction against President Obama’s new deportation in a ruling Tuesday that marks the second major legal setback for an administration that had insisted its actions were legal.
The U.S. Court of Appeals for the Fifth Circuit ruled in favor of Texas, which had sued to stop the amnesty, on all key points, finding that Mr. Obama’s amnesty likely broke the law governing how big policies are to be written.
“The public interest favors maintenance of the injunction,” the judges wrote in the majority opinion.
So, uh, “no” to rule by executive order seem pretty apparent. Also, the court noted those who opposed, or at least the one dissenting judge did:
“The political nature of this dispute is clear from the names on the briefs: hundreds of mayors, police chiefs, sheriffs, attorneys general, governors, and state legislators—not to mention 185 members of Congress, 15 states and the District of Columbia on the one hand, and 113 members of Congress and 26 states on the other,” he wrote.
Or, just about everyone else in America.
The dissenting justice felt it should be left between the President and Congress.
Well, now it is.
Before it was decree by executive order. So, in essence, the dissenting justice got what he wanted, even though he apparently doesn’t realize it.
From the inestimable Kevin Williamson:
When the law does not apply to the lawmakers and law-enforcers, you are not being governed: You are being ruled. And we are ruled by criminals. If you treat IRS rules the way the IRS treats IRS rules, you go to prison; if you treat federal law the way the secretary of state does, you go to prison. If you treat immigration controls the way our immigration authorities do, you go to prison. If you’re as careless in your handling of firearms as the ATF is, you go to prison. You cook your business’s books the way the federal government cooks its books, you go to prison.
If you believe that any of those who you’ve watched arrogantly refuse to follow the law are going to actually be prosecuted and pay the same penalty you would, you’ve not been paying close attention. When’s the last time you saw any politician or bureaucrat with any real power frog marched off to jail? When is the last time you actually saw one held accountable for their actions?
All of Williamson’s statements are true when applied to you and I. I’ve always used the example of a numbers racket. You run a numbers racket and you go to jail. The government runs one and they call it “the lottery” – and, of course, it’s proceeds are “for the children” – so its ok if they do it.
Until we see scofflaws like Hillary Clinton and others actually held accountable by law and suffer consequences for breaking it, there’s no downside for politicians and bureaucrats who break or ignore the law. And since there is no incentive right now for them to change and every incentive not too (in terms of increasing their control and power) we’re not going to see anything change. They’ll just continue to abuse and disobey the law and dare us to do anything about it. We’ll be treated to outrageous story after outrageous story (sort of what our fare has been for the last few years) and nothing will change. In fact, you can count on those stories becoming even more frequent.
But “rule of law”? That, apparently, is an old fashioned concept for our ruling elite and reserved only for the “little people”. And they hang us high when they get the chance to keep the fear of government alive and ensure their control doesn’t slip.
We have a ruling elite, folks, and we need to hold them accountable in the most basic way – if we want to see a return of the “rule of law” for all, bring government under control and again have the politicians and bureaucrats serve us instead of rule us.
William Jacobson over at Le-gal In-sur-rec-tion (a great blog and always a worthwhile read) lays out the probable outcome of the DoJ case against the AZ immigration law:
Based on reports of the hearing before the federal District Court Judge yesterday, it appears that the provision of the Arizona immigration law requiring law enforcement to verify immigration status is likely to survive, while other aspects creating independent state criminal sanctions will not.
This outcome — with the caveat that a Judge’s comments do not necessarily predict the outcome — makes sense legally. There is no interference with the federal administration of the immigration laws if the state, after confirming that a person is here illegally, merely turns the person over to federal authorities.
That means, essentially that the part of the law that will survive is that which requires all law enforcement to check the immigration status of anyone of which have a reasonable suspicion may be here illegally. And if they’re determined to be here illegally, turn them over to federal authorities.
And that’s where the probable “nullification” may take place –i.e. the nullification of the intent of the AZ law which had at its foundation the apprehension, removal and deportation of illegals found in the state. As Jacobson says:
While the survival of this aspect of the Arizona immigration law would still outrage opponents, the practical effect would be to allow federal authorities to nullify the state law in practice by refusing to take custody of or prosecute those turned over by state authorities.
Indeed, this is what happens sometimes in Rhode Island, when the State Police notify federal authorities and there are no outstanding warrants on the person.
Willful disregard for the law.
Isn’t one of the foundational principles of our nation “the rule of law” and not the “rule of men”? Isn’t such willful disregard counter to that principle? How does one count on being equal with all other men before the law when the government can arbitrarily decide what it will and won’t enforce?
All questions I’d like to see asked in court of the Department of Justice. Put them on trial as well. Make them explain why they feel entitled to ignore some law and rigorously enforce others.
If we don’t like a law, think it is wrong and should be taken off the books, there are several methods on the books to allow that – the courts or Congress (at a federal level) to name two. But selective non-enforcement – at least in a country that purports to be governed by the “rule of law” – isn’t one of them. And it drives states, such as AZ, to understandably take matters into their own hands.
It is the DoJ and ICE that should be in the docket – not AZ.
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Watching the events unfold in Central America over the past week has been an infuriating and dismaying exercise. Too many people, either sadly uninformed or maliciously misinforming, have referred to the ouster of Mel Zelaya by the unified government of Honduras as a “military coup” and an illegal transfer of power. Not only are such castigations dead wrong, they are made without any justification and completely against the actual Honduran Constitution.
To understand just how far off base these accusations of illegality are, ask yourself what law is alleged to have been broken. Has anyone cited an actual provision of the Constitution or a statute that’s been violated? Of course not, because there is none. In fact, if any of those who have been so quick to condemn the Honduran government had actually done just a smidgeon of research, they would have found the ouster of Zelaya to be self-perpetuated and entirely within the rule of law.
To wit, here is Title II, Chapter 4, Article 239 of the Honduran Constitution, first in Spanish:
ARTICULO 239.- El ciudadano que haya desempeñado la titularidad del Poder Ejecutivo no podrá ser Presidente o Vicepresidente de la República.
El que quebrante esta disposición o proponga su reforma, así como aquellos que lo apoyen directa o indirectamente, cesarán de inmediato en el desempeño de sus respectivos cargos y quedarán inhabilitados por diez (10) años para el ejercicio de toda función pública.
And in English#:
Article 239 — No citizen that has already served as head of the Executive Branch can be President or Vice-President.
Whoever violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.
The plain text of Article 239 quite clearly states that Zelaya, through his own actions, ended his presidency. By seeking to hold a referendum on whether Hondurans should consider changing the term-limits portion of the Constitution, Zelaya’s official duties were ended “immediately” and he was further barred from participating in public office for a period of ten years. Period, the end.
Some may try to argue that Zelaya did not receive any due process in his ouster, but that argument must fail. Even under U.S. jurisprudence, due process is simply all the process that is due. In this case, once Zelaya was determined to have violated the term-limits provision of Article 239 by proposing its reform, which Zelaya has basically admitted and which the Honduran Supreme Court derivatively found, then he received his due process. Despite the decisions against him, Zelaya decided to go ahead with his illegal referendum, gathered a mob together, and invaded the military compound where the (Venezuelan-created) ballot boxes were being kept. He fully intended to hold the referendum on Sunday June 28th had he not been stopped.
These, among other actions, were what led the Congress to pursue impeachment, the Attorney General to issue an arrest warrant on Saturday June 25, 2009, and the Supreme Court to issue its own arrest warrant on Sunday resulting in Zelaya’s removal from the country:
Honduras’s military acted under judicial orders in deposing President Manuel Zelaya, Supreme Court Justice Rosalinda Cruz said, rejecting the view of President Barack Obama and other leaders that he was toppled in a coup.
“The only thing the armed forces did was carry out an arrest order,” Cruz, 55, said in a telephone interview from the capital, Tegucigalpa. “There’s no doubt he was preparing his own coup by conspiring to shut down the congress and courts.”
Cruz said the court issued a sealed arrest order for Zelaya on June 26, charging him with treason and abuse of power, among other offenses. Zelaya had repeatedly breached the constitution by pushing ahead with a vote about rewriting the nation’s charter that the court ruled illegal, and which opponents contend would have paved the way for a prohibited second term.
The arrest order she cited, approved unanimously by the court’s 15 justices, was released this afternoon along with documents pertaining to a secret investigation that went on for weeks under the high court’s supervision.
Cruz said the military decided to shuttle Zelaya out of the country for his safety and that of other Hondurans because riots would’ve erupted had he been held for trial.
“If he had been allowed to stay in the country, there would’ve been blood on the streets,” she said.
To recap, Zelaya violated Art. 239 by proposing and then attempting to hold a referendum to change his term limits, which referendum was declared illegal by the Supreme Court and the Congress, and then he tried to go ahead with it anyway. In the meantime, aside from the secret, court-approved investigation going on for some time behind the scenes, the Attorney General and the Congress sought Zelaya’s impeachment, and the Supreme Court and the Attorney General each issued arrest warrants when Zelaya pressed ahead with his illegal referendum. The military responded to the court-ordered arrest and took Zelaya into custody on June 28th.
But what about the deportation to Costa Rica? Surely that was an illegal action? Heck, even a top Honduran military official is saying so:
The military officers who rushed deposed Honduran President Manuel Zelaya out of the country Sunday committed a crime but will be exonerated for saving the country from mob violence, the army’s top lawyer said.
In an interview with The Miami Herald and El Salvador’s elfaro.net, army attorney Col. Herberth Bayardo Inestroza acknowledged that top military brass made the call to forcibly remove Zelaya — and they circumvented laws when they did it.
It was the first time any participant in Sunday’s overthrow admitted committing an offense and the first time a Honduran authority revealed who made the decision that has been denounced worldwide.
”We know there was a crime there,” said Inestroza, the top legal advisor for the Honduran armed forces. “In the moment that we took him out of the country, in the way that he was taken out, there is a crime. Because of the circumstances of the moment this crime occurred, there is going to be a justification and cause for acquittal that will protect us.”
Of course, it wasn’t the first time anyone took credit for the decision (the Supreme Court has been saying for days that it order Zelaya’s capture), and Inestroza also declares that whatever “crime” may have been committed against Zelaya would be absolved anyway:
“What was more beneficial, remove this gentleman from Honduras or present him to prosecutors and have a mob assault and burn and destroy and for us to have to shoot?” he said. “If we had left him here, right now we would be burying a pile of people.”
This week, Deputy Attorney General Roy David Urtecho told reporters that he launched an investigation into why Zelaya was removed by force instead of taken to court. Article 24 of Honduras’ penal code will exonerate the joint chiefs of staff who made the decision, because it allows for making tough decisions based on the good of the state, Inestroza said.
Another provision to keep in mind is Title II, Chapter 3, Article 42:
Article 42: The legal rights of any citizen is lost:
5) If the citizen incites, promotes, or supports the continuance or the re-election of the President of the Republic;
Accordingly, not only has Zelaya lost his ability to continue in office through his own actions, he has also lost his rights as a citizen, among those which would presumably be the right to remain in the country. In the end, that all spells a one-way ticket to anywhere but Honduras for the would-be Chavista dictator. Moreover, Zelaya should be very thankful that he wasn’t ousted in the old-fashioned way which was much more permanent and painful.
The only question remaining is, why would our President, as leader of a country founded on the rule of law over the rule of men, opt to side with flouter of constitutional democracy instead of the leaders who took great pains to ensure that the country’s constitution was adhered to? Unfortunately, I’m afraid that there are no good answers to that question, and that our President is helping to precipitate a major crisis in Central America. Was this the change we were hoping for?
[General HT to Fausta for many of the above links]
# I’ve checked the translation against some Spanish to English translators and it appears to be essentially correct to me. Any suggested changes are welcome.
Which of those descriptions in the title would best describe your understanding of a Supreme Court Justice?
If you wonder what President Obama wants in a Supreme Court Justice, take a look at this excerpt from his speech explaining why he couldn’t vote for Justice Roberts.
He’s describing that 95% of the cases before the court will find all justices coming to the same conclusions. However, it is the 5% that concerned Obama and determined his inability to vote for Roberts. Here’s what he said:
In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country, or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, or whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
“Empathy” and “heart” do not equal “rule of law”.
Thomas Sowell distills the essence of the argument against Obama’s assertion:
Justice Oliver Wendell Holmes said that he “loathed” many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.
Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them “inevitable” is part of the cleverness that has eroded the rule of law and undermined respect for the law.
It would be considered a disgrace if an umpire in a baseball game let his “empathy” determine whether a pitch was called a ball or strike. Surely we should accept nothing less from a judge.
And that is reason enough why all of his nominees should be subjected to rigorous examination that requires them to explain their judicial philosophies in light of the president’s stated desires.