Thursday, February 16, 2017

In Muslim Ban Case Conservatives Have Abandoned Their Beliefs for Expediency – As They Almost Always Do

One of the big issues with respect to recent court rulings that the Trump administration did not have the authority to issue is Muslim ban is whether or not the plaintiffs, i.e., the states of Washington and Minnesota had standing.  That is, did they have a right to sue the United States government?  In order to do that had to show they were damaged or affected, which is what standing is.

Now this is not the first case in which states have had to prove standing to take the U. S. to court.  Here is the very conservative National Review describing some cases in the past.

“The government had challenged the states’ standing to raise its objections to its changes to lawful status in the form of expanded DACA and DAPA. But the Court rejected that argument because the change of lawful status triggers the granting of state benefits, specifically since Texas law does not issue state-subsidized driver’s licenses to aliens without lawful presence. Enlarging the category of aliens with lawful presence thus imposes a cost on Texas, giving the state a stake in the outcome of the litigation, which is all that is necessary to show standing. 

Ironically, the Supreme Court paved the way for this sort of challenge in Massachusetts v. EPA (2007), which gave what it called “special solicitude” to the state’s sovereign interests and found that Massachusetts had standing to sue the EPA because it could lose some shoreline due to global warming, even over several decades. The Court then reinforced the Massachusetts path in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015) just last Term, holding that a state legislature could sue another state entity as an institutional plaintiff asserting an institutional injury. Compared to the basis for standing in Massachusetts, the burden of DAPA on Texas is far less speculative and much more concrete.”

The case under discussion was where Texas sued the Obama administration’s decision not to go after un-documented aliens who were law abiding residents in favor of going after aliens who committed criminal acts.  Conservatives hated this and ultimately the Fifth Circuit ruled for Texas and the Supremes tied on the appeal, thus leaving the Fifth Circuit ruling in effect.  Conservatives, who favor state’s rights over federal rule, were overjoyed.

So one might have expected conservatives to support the idea that Washington and Minnesota had standing in their suit.  But that requires intellectual honesty.  Conservatives only support principles when they favor the outcome conservatives want.  One would also have expected conservatives to mightily condemn the federal government’s argument that it was above the law, that its actions were not reviewable by the courts.  This usurpation of power would have enraged conservatives had the President been Obama.  But to repeat, that requires intellectual honesty.  Conservatives only support principles when they favor the outcome conservatives want. GET IT!!

So how would real conservatives have reacted to the Washington/ Minnesota case?  They would have agreed that the states had standing and they would have agreed that the courts had jurisdiction and then argued that the law was on the side of the Muslim ban.  Of course that assumes the current conservatives are real conservatives, not the case here or in most other issues.

No comments:

Post a Comment