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Comment by nostromo | Hacker News Reader

If congress doesn't change something, then that means they have determined no change is necessary.

That isn't an invitation for the executive branch (or judiciary) to overreach.

In theory congress could go years without passing a single law, and that would be fine. It would signal that the current laws are sufficient.

(As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.)

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A recent dissent by Justice Thomas is elucidating.

"Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the Legislative Branch. Instead, the majority has decided to prolong [the Department of Homeland Security's (DHS)] initial overreach by providing a stopgap measure of its own. In doing so, it has given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches. Such timidity forsakes the Court’s duty to apply the law according to neutral principles, and the ripple effects of the majority’s error will be felt throughout our system of self-government."

This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare.

Things like DACA _need_ to be written in stone to avoid forcing the supreme court to become the effective legislator instead of having congress pass a law that enacts it as an actual program.

The more I learn about Justice Thomas, the more I like him.

He walks a difficult path well.

"The Court could have made clear that the solution respondents seek must come from the Legislative Branch."

In this case, that's exactly what the majority concluded. In layman's terms, this is a decision that says, "We aren't doing a thing. Congress made a promise. If you want to rescind it, go talk to congress, not us."

Congress didn't make DACA. Obama ordered it by executive memorandum, after a similar Congressional bill, the DREAM Act, failed in Congress.

> Congress made a promise

When exactly did that happen?

Congress created the reservation situation in Oklahoma many, many, many years ago. Not the Supreme Court.

If respondents want to undo that promise, they need to take the matter up with congress. That's what the court is saying. You can't short circuit the constitutional order. The court is right to drop this right back in the lap of congress.

GP wasn't talking about the Oklahoma decision, they were talking about DACA.

No. GP was giving an opinion about DACA in the context of the discussion of the article, and the person you responded to commented within that frame.

> This was his dissent on DACA. Agree or disagree with the program that allows undocumented immigrants to stay and go to school, I don't care. It's not legislative, it's not judicial, it was a program by DHS setup under the last administration. Now the court rules the current administration can't undo the program? It's bizzare.

It didn't rule that the current administration can't undo the program, it ruled that the administration has to properly justify that decision, and not doing so is unlawful.

At no point did it rule on DACA itself, or prevent the administration from providing actual, motivated and legal reasoning for rescinding the program.

Also

> This was his dissent on DACA.

Which corresponds to the majority ruling on this case, yet I can't help but notice Gorsuch joined the liberal justices in the majority, not Thomas.

However DACA itself is unlawful in that it is an Executive Order undermining Federal immigration law, so the administration's rescinding it on the basis of its unlawfulness should be sufficient enough justification. The problem is that the Court's ruling indicates that an EO which subverts existing law cannot be overturned by subsequent administrations simply on the basis of its illegality. Justice Thomas' dissent says exactly this.

That's incredibly problematic. According to the recent ruling therefore, a President has the power to issue and EO which prevents the enforcement of certain laws.

I urge you to read the SCOTUS opinion itself, and not just the rhetoric you may have heard in the media about the opinion. Because this:

> According to the recent ruling therefore, a President has the power to issue and EO which prevents the enforcement of certain laws

is flatly untrue.

> Now the court rules the current administration can't undo the program?

The court rules that the current administration can't undo it simply by waking up one morning and say "I wish that it be done;" it actually has to go through a process to explain why it is taking the decision it is, which is the same process it had to do to enact the program in the first place.

What?

https://thehill.com/homenews/administration/506018-trump-exp...

It's bizarre to have someone quote a judge's dissenting opinion but not read the main gist of the actual verdict.

> If congress doesn't change something, then that means they have determined no change is necessary.

... and therefore the promise is still in force and should be upheld.

True. In this case, either way, half of Oklahoma belongs to the tribe. Congress has not taken it away in the legally prescribed manner, therefore SCOTUS has no choice but to say that until congress does, the promise has to be upheld.

Congress has to do its job. Or not. Whichever it chooses. But it can't rely on the courts to do its job. The courts are right to let everything sit exactly where it is, and drop the entire matter back in the lap of congress.

> In this case, either way, half of Oklahoma belongs to the tribe.

If I am not mistaken, this ruling only pertains to the Major Crimes Act[0]. It doesn't mean half of Oklahoma "belongs to the tribe", it just means half of Oklahoma doesn't have criminal jurisdiction for a short list of crimes when they are committed by tribal citizens.

0: https://en.wikipedia.org/wiki/Major_Crimes_Act

> (As an aside, congress has ceded much of it's lawmaking authority to federal agencies anyway -- so even if they didn't pass any new laws, the legal code will still change every year.)

Normally this wouldn't be so bad, Congress is bad at making small evidence based changes on a reasonable timeline so instead they setup the rules for making the rules and the goals and instantiate or grant that authority to a division of the executive. Unfortunately it seems the courts have become very enthralled to varying degrees to the unitary executive theory which makes corralling that power more difficult.

> If congress doesn't change something, then that means they have determined no change is necessary.

This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made.

To say otherwise is akin to saying that, because you and your husband can’t agree on where to eat for dinner, you must not be hungry.

Both parties might believe that a law needs to be changed, but changed in opposite directions: one might want it repealed, the other strengthened.

> This not accurate. Congress failing to act due to deadlock does not indicate that either party agrees that no change ought to be made, only that congress couldn’t come to an agreement about how it should be made.

That is actually literally what it means. The way the Union is set up, there is a certain amount of consensus necessary to pass legislation over 50 States across 300+ million people.

If there is a deadlock, then it's the system telling you that the consensus isn't met. In a Federal system, this means that the next best place to (try to) pass the law is at the State level, where you may have less of a deadlock.

This is by far one of the pieces a lot of people seem to miss. The system was set up for gridlock in hopes that it will temper some of the more dangerous tendencies of powerful and ambitious men.

Thanks for this bit of insight. It really explains a lot, and it actually makes sense to me now.

It does indicate a consensus is not met, and merely that; the GP claimed the this lack of specific consensus on action is actually a form of broad consensus on inaction, a leap in logic that is unfounded because it ignores the political game theory that is employed in obstructionism.

It also ignores the fundamental brokenness of the system through a sort of circular logic: things didn’t change since they didn’t need to be changed.

You're putting words in my mouth.

That was not my intention. Could you clarify how your statement:

> If congress doesn't change something, then that means they have determined no change is necessary.

Is not accurately reworded as:

>this lack of specific consensus on action is actually a form of broad consensus on inaction

Yup. In tech terms, deadlock is an intentional feature, not a big.

I understand your point, but I fear you may misunderstand, because I believe the Decision is in line with your views.

The justices' point is that congress, in its inaction, has not enabled the reduction in Creek reservations that has been perpetrated through large-scale disenfranchisement all all levels of governance, actions which are in direct conflict with the reservation treaty signed in perpetuity.

For these actions to be legal, Congress must have authorized them. This has not happened and therefore, as the justices rule, these actions are unconstitutional.

No, I understand, and agree with the decision.

My disagreement is with people who excuse executive overreach by saying, "congress refused to act." Put another way, they're saying, "I had to work around the law to get what I wanted."

The judicial branch can decide that a law is not constitutional. It's then Congress' job to find the political will to make the law constitutional. Either by altering it, or amending the constitution. It's a governor on the system. Only the important stuff is supposed to make it past all three branches unscathed.

It either has to be something populist - everyone wants it so I won't get voted out of office - or it needs to be worth spending a ton of political power. When Congress is overwhelmingly in favor of a law, they can prevent a presidential veto. But that degree of unanimity is rarely free. It cost people something else, so it better be worth the opportunity cost.

And this is exactly what the court ruled - if Congress intended to withdraw from or change the agreement they’re well aware of how to make that happen. And they didn’t make it happen so they must not have intended to change anything.

I would assume (haven’t read the whole opinion yet) that nothing about this ruling now prohibits Congress from exercising their authority to take any further action.

> no change is necessary.

This could mean a lot of things. Do you mean no change to the law is necessary? SCOTUS is upholding that principle. It is saying that the law as written stands.

The Judiciary is not overreaching here. They are doing exactly what their job says - they're interpreting existing laws, not writing new laws.

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