A "friend of the court" brief has just been filed with the federal Fifth Circuit Court of Appeals in New Orleans in the case filed against the federal government by over half of the states, which are seeking to have ruled illegal and unconstitutional major portions of the administration's "executive action" programs on immigration.
The brief supporting the plaintiff states was filed by the Committee to Defend the Separation of Powers of the American Center for Law and Justice (ACLJ). According to the ACLJ, it was filed on behalf of nearly 220,000 individuals who have expressed their concern over this White House's trampling on the separation of powers established by our constitution.
The brief stands in sharp contrast to the opinion issued by the Justice Department's Office of Legal Counsel justifying the "executive actions" just prior to their promulgation. That opinion was a marvel of logical acrobatics in its attempt to provide a basis for what OLC lawyers clearly understood was the desired path their political masters wished to tread down.
It is my guess that, in the fullness of time, the OLC will arrive at a point of deep embarrassment, both for having shown itself so malleable as to be willing to bend law and logic to arrive at an impossible result and for having issued a document so poorly reasoned that even first-year law students could pick out its flaws.
The ACLJ's brief is succinct, well reasoned, and tightly argued. I don't know who most of those nearly 220,000 individuals are that ACLJ speaks for, but I applaud them. I do know, however, that 113 of them are sitting senators and representatives of the present Congress. Pretty much all of them are Republicans. Undoubtedly, party politics has prevented many a Democrat from speaking out on the executive actions when in their heart of hearts they may have serious concerns about executive overreach, but not all Democrats have been so silent.
For instance, to his credit, David Martin (law professor at the University of Virginia, former general counsel of the Immigration and Naturalization Service, and most recently the deputy general counsel of the Department of Homeland Security under this administration) felt constrained in November of last year to speak out in a blog entitled "Concerns about a Troubling Presidential Precedent and OLC's Review of Its Validity".