As various writers have noted a federal judge in Texas has ordered the DOJ to explain why its attorneys told an earlier hearing that no action had been taken on the Obama executive amnesty when, in reality, more than 100,000 illegals had already been given legalization papers - and more are being rushed through the process every day.
The calculation here among senior Obamacon appointees at the White House and in the affected operating agencies is simply that pushing full speed ahead on amnesty while ignoring the courts builds toward a "fait accompli" that cannot be undone - after all, nobody is going to march seven million amnestied illegals across the Rio Grande after the Supreme Court finally rules on this sometime in, or after, 2018.
The calculation among the senior civil service professionals charged with actually issuing the documentation comes in three parts: first, that there is no comeback on them if the program is eventually found to be contrary to law; second that there are enough leftists being appointed to the senior bench that politics will now generally trump law anyway; and, third, that they are under direct threat from the President of the United States to implement his policies or face the consequences:
"If somebody's working for ICE - and they don't follow the policy, there's going to be consequences to it."
In both 2012 and 2014 the American people elected Republicans to oppose this kind of Obamacon behavior, but they're not doing the job - and the reasons for that are not hard to find. First, Republicans are not as ideologically driven as the extremist left wingers now in control of the democratic party and their willingness to see both sides of the Obamacare and illegal immigration issues hugely weakens their ability to act as a cohesive body in stopping Obamacon abuses.
Second, the main stream media's visceral hatred for all things conservative coupled with their continuing enthusiastic support for the Obamacon makes the latter's standing threat to burn the American house down while blaming Republicans for it sufficiently credible to empower the natural appeasers in the party, and thus render it largely impotent.
The bottom line on all this is simple: judges like Mr. Hanen can issue all the orders they want; but, with the GOP establishment effectively neutered and the press hiding the issue from the public, nobody important to the process has much to fear from ignoring lower level court rulings and so the Obamacon will continue to file appeals and issue soothing sound bites in public, while privately accelerating their efforts to pack the senior bench and undermine respect for law throughout American culture.
Meanwhile, the people "back home", many of whom have no idea what's going on in Washington or what pressures people like John Boehner face, grind their congress critters between rocks and hard places by generally demanding action to stop Obamacon abuses while also generally accepting major media assurances on the transparency, good intentions, and general honesty of the Obamacon.
The resulting GOP paralysis empowers the Obamacon and there has to be a smarter response than merely waiting for a miracle - but what? One idea, so stupidly brilliant it's hard to know whether to laugh or cry, is to pass a bill through both the house and the senate explicitly making it illegal, with mandatory specified penalties including permanent exclusion from federal employment and forfeiture of all earnings from the date of the offense to the date of the applicable court ruling, to excerise authority over the civil service for the purpose of committing illegal acts.
What this does is bring the military principle that officers have a duty to refuse immoral or illegal orders to the civil service.
In other words, the purpose is to force a civil servant ordered to undertake some illegal action like issuing three billion dollars in Obamacare make-good checks to insurers without any form of congressional authorization, to think twice about his or her personal responsibilities in doing so.
Such a bill would have to carefully worded to provide the least possible wiggle room both for judges charged with enforcing the law and for civil servants trying to evade it - but that should not be difficult as there is considerable military case law (apparently going back to 1799 and most recently endorsed by senior democrats (including both Reid and Pelosi) with respect to Army officers accused of ordering the mistreatment of prisoners in Iraq) from which appropriate wording can be developed.
The practical bottom line on this idea is that civil servants, especially senior civil servants, tend to be deeply risk averse - and none of them are going to act on illegal orders when there is some possibility that doing so could incur significant personal loss. Every senior civil servant affected can, for example, be expected to look at the reality of Mr. Boehner's lawsuit on executive overreach and remember that the "I was only following orders" defense didn't work for anyone at Nuremberg.
The political side of this issue is even simpler: democrats trying to stop it will find themselves arguing that civil service actions are above the law, that the judiciary has no role in reviewing executive actions, and that soldiers told to raze villages or torture prisoners are morally right to do so. Many leftists are, of course, genuinely opposed to motherhood and apple pie, but democrats up for re-election in 2016 and 2018 will not want to go on record arguing that systemic political corruption in the civil service is a good thing.
Thus the political calculation on this bill is that it can be passed with veto proof majorities in both the house and the senate -and its practical consequence, since almost nothing the Obamacon want done can be implemented without civil service connivance, will be to bring their entire program to a dead stop.
This doesn't just mean that the civil service will stop issuing social security numbers and tax credits to illegals, it also means that the brownshirting going on in the EPA, DOJ, and IRS will stop while whistle blowing will increasingly replace political activism as the senior official's get of jail free card of choice. The whole idea is ridiculous in itself, and the next president will need to work with Congress to rescue federal government operations from what will amount to a semi-permanent work to rule strike, but passing this bill now will mean that the only growth industry in Washington for the rest of the Obama presidency will be in Special Prosecutors - and, really, how is that a bad thing?
, a Canadian, wrote and published The Unix Guide to Defenestration. Murphy is a 25-year veteran of the I.T. consulting industry, specializing in Unix and Unix-related management issues.