The news that Britain is leaving the European Union has some interesting implications for America’s own domestic politics. Take, for example, the Supreme Court’s decision yesterday in the executive-amnesty case United States v. Texas. Texas had challenged Obama’s abuse of presidential powers through the federal courts, with rather more success than might have been hoped for given the increasingly deferential federal judiciary.
But Brexit raises the question: Is there some point at which unconstitutional abuses of government power would give rise to a fundamental right of exit? We already know the answer. It’s in the Declaration of Independence.
Now, as disappointing as it was to be challenged for taking the kind of actions that other administrations have taken, the country was looking to the Supreme Court to resolve the important legal questions raised in this case. Today, the Supreme Court was unable to reach a decision. This is part of the consequence of the Republican failure so far to give a fair hearing to Mr. Merrick Garland, my nominee to the Supreme Court.
First, the DAPA executive amnesty was not “the kind of action that other administrations have taken.” As the Fifth Circuit Court of Appeals observed in its decision to stay the amnesty last November, “historical practice that is so far afield from the challenged program sheds no light on the Secretary’s authority to implement DAPA.”
Last November, the Fifth Circuit Court of Appeals agreed, and then calmly observed that in our system the president isn’t allowed to unilaterally “change the law.” Nobody disputes that prosecutors have discretion to prosecute some cases and not others, or even that their superiors can prioritize some categories of cases over others. But, as the Fifth Circuit pointed out, “declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.” Obama sought to change the law, and didn’t even bother to go through the Administrative Procedure Act’s requirements for delegated executive-branch rulemaking authority, probably because he doesn’t have the delegated authority to change immigration law to start with.
No president has ever gone this far, this often, in daring federal courts to rule against him. That’s what makes his “poor me, why don’t I get to play like the other kids” statement yesterday so unseemly and beneath the dignity of the office.
Even worse was his assertion that “the Supreme Court was unable to reach a decision.” The Supreme Court did reach a decision. Here it is: “The judgment [of the Fifth Circuit Court of Appeals] is affirmed by an equally divided Court.” The fact that a court has an even number of judges doesn’t make it unable to reach a decision, as the Supreme Court showed for much of its first 80 years. If an appeals court deadlocks, the lower court’s ruling is upheld. That’s what almost certainly would have happened if the sorely missed Justice Scalia were still alive, and it’s what happened without him.
Britain’s decision to leave the European Union casts an ominous pall over all of this. During Obama’s presidency, Texas has been forced to sue his administration dozens of times for a wide variety of abuses. The most fundamental reason this has happened is that President Obama and his supporters don’t mind governing according to a self-indulgent “living constitution” that half the country vehemently rejects.Constitutions are about consensus agreement on the principles of government. If we don’t agree on every piece of legislation, we must at least agree on who gets to legislate and how. The various theories of nullification and secession bandied before the Civil War, by John C. Calhoun and others, were clearly unconstitutional. But that’s according to a strict interpretation of the Constitution, one that 19th-century believers in the “living constitution” would have dismissed as easily as the president dismisses the text of the Constitution today.
Obama can’t be happy about Brexit. But he should be thankful he’s not dealing with “Texit,” because he has surely asked for it.
— Mario Loyola is a senior fellow at the Wisconsin Institute for Law and Liberty.