SCOTUS Disses States Again – Latest Ruling Will Aid Biden's Steady Flow of Illegals
Conservatives should feel lukewarm, at best, about their so-called “conservative” Supreme Court.
On June 22, according to a report by The Hill, SCOTUS ruled 8-1 that Texas and Louisiana lacked standing to bring legal challenges against the Biden administration’s deportation guidelines.
Justice Brett Kavanaugh wrote the majority opinion.
“The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests,” Kavanaugh wrote.
He added that SCOTUS “has long held that ‘a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.'”
In lower courts, Texas and Louisiana had successfully argued that the Biden administration’s immigration policies placed undue burden on the states’ law enforcement and social services budgets.
Spencer Brown, managing editor for Townhall, explained that SCOTUS issued this decision “Without ruling on the merits of an immigration policy enacted by the Biden administration.”
Justice Samuel Alito dissented.
“This sweeping Executive Power endorsed by today’s decision may at first be warmly received by champions of a strong Presidential power,” Alito wrote, “but if presidents can expand their powers as far as they can manage in a test of strength with Congress, presumably Congress can cut executive power as much as it can manage by wielding the formidable weapons at its disposal.”
Alito blasted his colleagues for shirking their constitutional duties.
“But when we have jurisdiction, we have a ‘virtually unflagging obligation’ to exercise that authority,” he added.
Conservatives have good reason to feel frustrated.
SCOTUS’ “lacks standing” excuse no doubt reminds readers of the Court’s decision to weasel out of reviewing massive and widespread fraud allegations following the 2020 election.
It also might remind readers of the semantics Chief Justice John Roberts employed in 2012 when SCOTUS upheld the constitutionality of the 2010 Affordable Care Act.
Some might believe that SCOTUS’ recent landmark decisions on abortion and affirmative action offset its dubious judgment in other cases.
Contemporary political concerns aside, this case involves the oldest and deepest of constitutional issues.
In short, the U.S. system of constitutional federalism, properly understood, gives Texas and Louisiana all the standing and redress they should need.
The central question here has nothing to do with standing before SCOTUS.
The central question involves options available to states when the federal government fails to uphold the Constitution.
In 1798, all three branches of the federal government conspired to trample the Bill of Rights by first adopting and then upholding the tyrannical Alien and Sedition Acts.
Thomas Jefferson and James Madison responded by arguing that when the federal government threatens the rights and liberties of the people, the states have a responsibility to intervene.
Texas and Louisiana have proven that the Biden administration’s deportation guidelines threaten the rights and liberties of the sovereign people of those two states.
Texas and Louisiana need not appeal to SCOTUS. Texas and Louisiana may take action on their own.
This, I realize, might strike some readers as jarring and controversial, a callback to the days of nullification.
If so, the jarring and controversial aspect stems not from the Constitution but from a two-centuries-old habit of deference to judicial review.
The Constitution entrusts SCOTUS with final appellate jurisdiction, but it does not identify SCOTUS as the final word on the meaning of the Constitution.
During the most vehement constitutional disputes of the 1790s, contestants on all sides adopted a variety of arguments.
At no time, however, did they think to consult the Supreme Court for final word on the Constitution’s meaning.
Chief Justice John Marshall’s Supreme Court smuggled the concept of judicial review into the Constitution beginning in the early nineteenth century.
Since then, the Constitution’s original intent has yielded to a much more expansive view of judicial power.
There is irony in this analysis, of course, because SCOTUS’ ruling against Texas and Louisiana seems at first glance an act of judicial restraint.
The problem, however, as evidenced by the lower courts’ acknowledgment of the burdens Biden’s immigration policies have placed on those two states, is that according to the doctrine of judicial review the sovereign people of Texas and Louisiana now have nowhere to turn.
In a system of constitutional federalism, that conclusion cannot stand.
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