The DACA Decision and the Judicial Threat to the Rule of Law

MikeAMikeA Senior MemberPosts: 3,927 Senior Member

Interested to hear Sherb's Opinion on this one. I couldn't agree more with the author.

This is extraordinarily dangerous judicial nonsense. If the Obama administration was merely exercising its “prosecutorial discretion” — as it claimed it was — there is absolutely no law or authority stopping the next administration from undoing the change. None. And if the Obama administration’s action went beyond mere prosecutorial discretion, then it’s void for violating the APA. No administration has the power to issue new regulations via memorandum.

https://www.nationalreview.com/2018/04/the-daca-decision-and-the-judicial-threat-to-the-rule-of-law/

Replies

  • Green Mt BoyGreen Mt Boy Senior Member Posts: 1,016 Senior Member

    Fair point. But, I do have to ask: since when did Trump and his supporters care about the rule of law?

  • MikeAMikeA Senior Member Posts: 3,927 Senior Member

    In all fairness, the same could be said about the previous admin and the one that was destined to take it's place...

  • StevenSteven Senior Member Posts: 3,427 Senior Member

    Having lived through the DOL Fiduciary Rule - somebody needed to have sued the Obama administration for violating the APA. If nobody did, then how can somebody say that the Obama Administration violated it?

    FWIW, it was the 5th Circuit Court of Appeals that vacated the DOL Fiduciary Rule.

  • MikeAMikeA Senior Member Posts: 3,927 Senior Member

    @Steven said:
    Having lived through the DOL Fiduciary Rule - somebody needed to have sued the Obama administration for violating the APA. If nobody did, then how can somebody say that the Obama Administration violated it?

    I wondered the same thing. Why didn't they sue? FTR, I'm ok with leaving DACA alone.

  • EchoTestEchoTest Posts: 480 Senior Member

    Well...after cutting and pasting it into my word processor app the linked article contains more words than anything I've ever wrote.

    So I'm assuming if I just take my posts and put them on the web and then insert a hyperlink it will be easier than clicking a mouse in the right hand page scroll for people to.....wait....no...still the same...you still have to go to the right and page scroll either way....

    I'm trying fellers...I really am!

  • StevenSteven Senior Member Posts: 3,427 Senior Member

    @MikeA said:
    I wondered the same thing. Why didn't they sue? FTR, I'm ok with leaving DACA alone.

    Plaintiffs would probably have to show harm. So, who was harmed?

  • EchoTestEchoTest Posts: 480 Senior Member

    And don't they have to show more harm than their feelings were hurt? Doesn't it have to be something....I don't know...tangible? Is that the word?

    Blaw 275 was like 2007....and the damned very large but very liberal New England state university I went to was fixated on Enron at the time as far as most ancillary business administration classes went! Or more importantly....how people were blinded by irrational rise in stock price and greed to unquestionably invest in something suspect and risky from the start...not that Enron didn't do anything wrong on a grand and large scale mind you....the did and how.....but c'mon.....ya know?

    In '86 my sister had one and a half years towards an accounting degree at a small college between Austin and San Antone and quit and went to work for a CPA firm in San Antonio....they had a huge brand new multi floor lime stone office building in the Live Oaks up in the hill country but got in trouble for a lot of things and the partners split up and she went with the most charming of the partner-couples when they took a few accounts willing to stick and opened a much, much smaller single room 5 employee office....the couple wanted to extend to their employees an opportunity to buy into a private investment fund....all they had to do was pay 2,000 bucks...then recruit 10 more people to invest 2,000 bucks and they got to cash out for 20k and sell the investment to the ten people they brought into the plan....I told her...NO! NO NO NO!

    Well....by that time of course there were twenty...thirty...not enough people for anybody to cash out for anything because its hard to find ten people to pay into something like that when none of them have actually seen anybody directly above them cash out....

    Yeah...Enron...you can imagine all the debates that were constantly going on in class at that university....its no wonder I was forced to study for the tests on my own and its one of the only (two) classes in my undergrad I didn't pass with a 4.0.....

  • George KGeorge K Super Moderator Posts: 9,923 Senior Member

    @Steven said:
    Having lived through the DOL Fiduciary Rule - somebody needed to have sued the Obama administration for violating the APA. If nobody did, then how can somebody say that the Obama Administration violated it?

    FWIW, it was the 5th Circuit Court of Appeals that vacated the DOL Fiduciary Rule.

    For those of you who haven't followed this story, Steven is happy that the dread Obama's attempt to require financial advisors to act only in their clients' interest rather than their own in recommending investments (that is, they couldn't steer them to their brother-in-law's Ponzi scheme) was overturned by a bunch of Good Old Boy judges in Louisiana. :)

    Keep your stinkin' government hands off my Medicare.
  • EchoTestEchoTest Posts: 480 Senior Member

    What I'm having a hard time understanding is why somebody has to sue somebody (and win I supposes) to be able to say they violated something? It would seem to me that it would, in many cases, be evident whether or not somebody violated something. I mean...hell...there are millions of instances where there's no question somebody violated something where a suspect isn't even found or known....let alone having been taken to court and found guilty....but we know somebody committed a specific violation...that is fact beyond doubt!

  • fishingcomicfishingcomic Senior Member Posts: 23,929 Senior Member

    @George K said:

    @Steven said:
    Having lived through the DOL Fiduciary Rule - somebody needed to have sued the Obama administration for violating the APA. If nobody did, then how can somebody say that the Obama Administration violated it?

    FWIW, it was the 5th Circuit Court of Appeals that vacated the DOL Fiduciary Rule.

    For those of you who haven't followed this story, Steven is happy that the dread Obama's attempt to require financial advisors to act only in their clients' interest rather than their own

    The horror!!!

    'I've spoken of the Shining City all my political life. …In my mind it was a tall, proud city built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still.'" Ronald Reagan
  • sherbsherb Senior Member Posts: 3,906 Senior Member

    @MikeA said:
    Interested to hear Sherb's Opinion on this one. I couldn't agree more with the author.

    This is extraordinarily dangerous judicial nonsense. If the Obama administration was merely exercising its “prosecutorial discretion” — as it claimed it was — there is absolutely no law or authority stopping the next administration from undoing the change. None. And if the Obama administration’s action went beyond mere prosecutorial discretion, then it’s void for violating the APA. No administration has the power to issue new regulations via memorandum.

    https://www.nationalreview.com/2018/04/the-daca-decision-and-the-judicial-threat-to-the-rule-of-law/

    I agree. bad decision.

  • George KGeorge K Super Moderator Posts: 9,923 Senior Member

    @sherb said:

    I agree. bad decision.

    Probably, if looked at narrowly as strict constructionists are likely to do. But there is another judicial philosophy that says that sometimes interpretations can shift along with needs of society and that the Constitution can evolve with the times. See the history of the concept of the right to privacy, for example. This decision then could seem either tempering justice with mercy. Or, if the President is a Grinch and Congress is impotent, someone has to display some common sense, in this case the court.

    Another debatable decision is the one in which strict constructionist judicial activists reversed the traditional understanding of the 2nd amendment as referring to the organized militia, and said that it means the unorganized militia as well. So, reductio ad adsurdum, why did these giants of the bench stop short of saying that all law abiding citizens may own the same weaponry as the National Guard?

    Keep your stinkin' government hands off my Medicare.
  • sherbsherb Senior Member Posts: 3,906 Senior Member

    Yeah, I agree that judicial activism is in the eye of the beholder. The problem is that DACA was an Obama administration policy, and so was clearly subject to reversal by a different president. Its not really a close question. Obama himself doubted that he had the authority to do what he did, so for a different president to reverse course is not even close to being legally controversial.

    Apparently we no longer have a Congress so this is how things are done now.

  • EchoTestEchoTest Posts: 480 Senior Member

    Look....if there are writings and legislation in books and judgements (decisions...I seem to remember from Blaw 275 that's called court law or something like that that judges and jury decisons become law in and of by themselves and stuff....presidences....that's what it's called) except for when somebody wants the supreme court to decide something that is kinda hinted at but not explicitely spelled out to objectively and not subjectively or arbitrarily or politically 'VULCAN MIND MELD' and come to a more supreme court justices voted this way than didn't decision that the founding four fathers meant this or that......

    Whatever....I'd think somebody worth their weight in mega-meal deal burgers and fries could easily figure out whether or not somebody violated the rules or not....

    UNLESS....they didn't like what the rules said...so they tried to screw around with semantics and obfuscation and all kinds of other tactics to try and slip one by all the clueless and less invested and lazy and getting paid the same salary no matter what government employees counting down till 30.....

    Awwww....whatever...I see the point now.....its really easy to slip stuff by most people.....its like that movie Idiocracy.....somebody is banging like crazy on your door....screaming 'Please...Please...Let me in!....Call the Cops! Call the FBI! Call the President! Not only do I not have any idea why they are chasing me, I've been asleep in a cryo chamber for over a hundred years and I have no idea where I'm at!

    Response: 'Baiting....go away...Baiting!'

    What?

  • fishingcomicfishingcomic Senior Member Posts: 23,929 Senior Member

    @sherb said:
    Yeah, I agree that judicial activism is in the eye of the beholder. The problem is that DACA was an Obama administration policy, and so was clearly subject to reversal by a different president. Its not really a close question. Obama himself doubted that he had the authority to do what he did, so for a different president to reverse course is not even close to being legally controversial.

    Apparently we no longer have a Congress so this is how things are done now.

    I hate the policy decision the Trump Admin is making here. But I agree.

    'I've spoken of the Shining City all my political life. …In my mind it was a tall, proud city built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still.'" Ronald Reagan
  • George KGeorge K Super Moderator Posts: 9,923 Senior Member
    edited April 2018 #17

    "Apparently we no longer have a Congress so this is how things are done now."

    This is the root of the problem.

    But - not seriously, really - I still wanna know if Thomas and Alito think it's OK for Sherb and me to own Claymores, mortors, 175mm M107 self-propelled guns, Exocets, tanks, F-16s, Puffs (not the tissues) etc.

    Keep your stinkin' government hands off my Medicare.
  • fishingcomicfishingcomic Senior Member Posts: 23,929 Senior Member

    I won't feel free until I have my very own thermonuclear device.

    'I've spoken of the Shining City all my political life. …In my mind it was a tall, proud city built on rocks stronger than oceans, windswept, God-blessed, and teeming with people of all kinds living in harmony and peace; a city with free ports that hummed with commerce and creativity. And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here. That's how I saw it, and see it still.'" Ronald Reagan
  • EchoTestEchoTest Posts: 480 Senior Member

    @George K said:
    "Apparently we no longer have a Congress so this is how things are done now."

    This is the root of the problem.

    But - not seriously, really - I still wanna know if Thomas and Alito think it's OK for Sherb and me to own Claymores, mortors, 175mm M107 self-propelled guns, Exocets, tanks, F-16s, Puffs (not the tissues) etc.

    Pssssst....Pssssst.....Hey George (whispering)...how much you got?....I don't have any of those things on me but I can get anything you want....and I don't know these Thomas and Alito guys, I don't know where they're from, don't know there peeps, we're not asking them jack, we're not saying anything, if you get my drift? Which reminds me...you got a place to hide them right? You're not going to like...put them in the driveway and be out there with a hose and chamois so all the neighbors can see you with your new toys, right? You get caught with them you found them, they were laying out in a field, you don't know who left them there. Its all on you bud. Got it? Somebody comes knocking at my door....well....I'm sure you know what I mean....

    And that's just on way you can get something somebody told you that you can't have! Tens of millions a year and millions of man hours spent waging a war on drugs, and its estimated that between 2000 and 2010 Americans spent about one trillion dollars on illegal substances.

    What's that tell you? It tells you that if you want something most likely it can be had!

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