Legitimizing Unconstitutional Actions with Funding

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Ever since the Texas district court issued a nationwide injunction against the President’s unconstitutional executive order, French congressional Republicans have been clamoring to convince their colleagues to pass a DHS funding bill acceptable to Democrats.  Marco Rubio and John McCain are just a few I mentioned on my Sunday show.

Appearing on the February 19 episode of Morning Joe, John McCain said, “Now that we have a favorable decision declaring the President’s actions unconstitutional, we should move forward leaving this up to the courts.” According to McCain, “We now got a perfect reason not to shut DHS down because the courts have decided, at least initially, in our favor.”

However, if McCain put on his bifocals and read the decision rather than running to cameras like a moth to a flame, he would understand that congressional acquiescence to unconstitutional Executive action creates a presumption of legality in Federal court. This is called the Executive in Medellin doctrine, mentioned several times in Judge Hanen’s opinion. This doctrine, dreamed up by the Supreme Court, states that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, can raise a presumption that the action had been taken in pursuance of Congress’s consent.”

For the time being, I will set aside the dubious legitimacy of such a doctrine. My goal here is to explain what I know as an attorney, mainly a vote to fund Obama’s amnesty program in any form, will result in the administration being able not only to begin processing applications for deferred action, but also to argue that Judge Hanen’s injunction no longer applies.

Judge Hanen based the issuance of his injunction upon DHS failure to follow the Administrative Procedure Act. Simply put, that act requires agencies to provide public notice and a hearing before changing policy. Unfortunately, having a hearing and the ability to submit comments to unaccountable bureaucrats is what passes for representative government in the eyes of the Supreme Court. Nevertheless, this was the sole basis for Judge Hanen’s injunction.

If Congress funds DHS in the manner Democrats are demanding, Obama’s executive order on immigration will be fully funded.  I suspect the administration would immediately begin processing applications for deferred action.  To avoid being held in contempt, they will argue that Hanen’s injunction no longer applies. After all, how can a failure of an agency to give the public notice about a policy change, make any difference once the people’s own representatives vote in favor of such changes?  Meanwhile, Federal courts will view a vote to fund Obama’s executive order, not simply as congressional acquiescence to unconstitutional action, but approval of it.