Thursday, February 19, 2015
As I have written elsewhere, I favor comprehensive immigration reform, including some form of amnesty for many of the 11-12 million people currently residing in the United States without authorization. But, a formal repreive - even a temporary one - for those residing here illegally must, under our Constitution, come via legislative action not executive fiat. Last November, frustrated by congressional impasse, President Obama directed Homeland Security to give a formal 3 year repreive (called DAPA) to 4 to 5 million persons living in the United States without authorization. It is my assessment that this action and subsequent action by the Secretary of Homeland Security amounted to unconstitutional legislating by the Executive (I may elaborate in a later post).
26 states sued to enjoin the enforcement of DAPA, and this past Monday a federal judge granted a preliminary injunction halting the implementation of DAPA. In a circumspect opinion, the judge ruled that Homeland Security failed to comply with the notice and comment requirements of the Adminstrative Procedures Act. The court very properly declined to address the constitutional separation of powers issues at the preliminary injunction stage because "[j]udging the constitutionality of action taken by a coequal branch is a 'grave' and 'delicate duty' that the federal judiciary is called on to perform. ... if there is a non-constitutional ground upon which to adjudge the case, 'it is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question.'"
Based upon its conclusion (rightly I think) that the administration engaged in substantive rulemaking rather than prosecutorial discretion, I have little doubt that this court will find a separation of powers violation if it reaches the constitutional issue, but I applaud the judge's efforts to avoid the constitutional issue.
Tuesday, December 16, 2014
Wednesday, December 3, 2014
Although I favor comprehensive immigration reforms, including relief for many of those persons living and working in the United States in an undocumented status, I think the President unconstitutionally crossed the line between prosecutorial discretion (an Executive function) and policy making (a legislative function) when he signed an Executive Order, which will allow several million undocumented persons to remain in the United States. For my reasoning, see this post on Aleteia.
Thursday, November 13, 2014
Join us tomorrow for a symposium titled Chae Chang Ping v. U.S.: 125 Years of Immigration's Plenary Power Doctrine hosted by the Oklahoma Law Review. The symposium will be held in the Bell Courtroom of the law school from 9:30 to 12:30 on Friday, Nov. 14. CLE credit is available. Speakers include Rose Cuison-Villazor, Kevin Johnson, David Martin, Margaret Taylor, and yours truly. Unfortunately a cancelled flight will keep Victor Romero from joining us.
Monday, September 22, 2014
Thousands of faithful and faithfilled Catholics along with members of other Christian faiths attended a Holy Hour and Eucharistic Procession at St. Francis Church in OKC yesterday afternoon to pray for Oklahoma City as a group of satanists prepared to hold a public black mass (sans consecrated host) at the OKC Civic Center. As reported by Anamaria Scaperlanda Biddick, "Archbishop Coakley said during the Eucharistic Holy Hour and outdoor Eucharistic procession that he and several bishops, dozens of priests and some 3,000 lay persons 'gather not to protest.' He urged attendees to 'put aside the outrage,' and instead 'adore, and listen to the holy Lord, and open our hearts to the promptings of the spirit.' It was a beautiful and reverant event reminding Catholics of the Lord's presence in the Eucharist, a fact that even the satanists seem to understand.
In recent column, Archbishop Coakley continued to urge people to stay away from the Civic Center before and during the staging of the black mass: "I am aware that other groups are planning to show their opposition to the blasphemous event that evening at the Civic Center. I urgently ask everyone to avoid confrontations with those who might oppose them. Our witness ought to be reverent, respectful and peaceful."
In another show of disobedience to the local ordinary, the schismatic SSPX was one of the "other groups" who ventured downtown to the Civic Center. Their presence, along with other groups, completely changed the narrative as it played out on local television.
The Archbishop's focus was on reverant prayer, Christian unity in Christ's body, and continued conversion of those attending the Holy Hour in addition to conversion of those staging the blasphemous event. The protests by SSPX and others at the Civic Center allowed the media to frame the narrative as one of clashing First Amendment rights - the free speech rights of the protestors against the religious freedom rights of the satanists.
Lost in this narrative was the authentic Catholic response: 1) a belief that Christ really is present in the Eucharist, 2) the devil, evil, and demonic forces are real and are dangerous to people and communities who open themselves up to these forces, 3) through Christ's passion, death, and resurrection, final victory, but skirmishes remain as long as this life endures, and 4) our response is prayer, the Eucharistic, and continued conversion and not clash of modern rights.
FYI, 88 people bought tickets to the black mass and 42 of those attended. Please pray for their souls. Many have told me that the Catholic Church should have just ignored this event because by opposing it and responding to it, it received much more media attention than it otherwise would have received. My response: If this had been a blasphemous b-movie, I would have agreed. But, as the Archbishop said, there is a very real danger to a community because "satanic ritual invokes powers of evil and invites them into our community."
Update: Here is Archbishop Coakley's homily given during the Holy Hour.
Saturday, September 20, 2014
Thursday, August 21, 2014
Wednesday, August 20, 2014
Last month I wrote about a satanic black mass, which is scheduled to be held in Oklahoma City in September. Earlier this month, Archbishop Coakley called for prayer and penance to avert the planned sacrilege. In addition to Holy Hours, Eucharistic Processions, and Benediction, the Archbishop is asking all Catholics to say the Prayer to St. Michael the Archangel now though September 29 (the Feast of the Archangels). Please join us in this prayer.
Today, the Archdiocese filed a Petition for Replevin against the organizers, contending that the consecrated host that the organizer claims to possess "must have been procured, either by that person or by another, by illicit means: by theft, fraud, wrongful taking, or other form of misappropriation." Here is a link to the Petition.
Michael Caspino of Busch & Caspino (Irvine, Ca.) and Chris Scaperlanda of McAfee & Taft (OKC) represent the Archdiocese. Yes, I'm a proud dad.
Thursday, July 24, 2014
Catholic schools are "public" schools in the best sense of the word, contributing as they do to the public - and common - good of the communities they serve. In many communities, they serve non-Catholic and poor students and their parents.
As Rick Garnett has said on this blog many times, in a healthy society, the state ought to recognize the public character of these institutions and support them through vouchers or a similar funding mechanism. When the public schools were de facto Protestant and an anti-Catholic spirit filled the air, many states adopted Blaine Amendments to prohibit public funds being used to support parochial schools.
Could the Blaine Amendments - as ugly as they were - be a blessing in disguise in a culture that is increasing intolerant of religious dissent from secular orthodoxy? Because of the Blaine Amendments, Catholic and other religious primary and secondary schools - unlike religious colleges, which are dependent on federally subsidized student loans - have had minimal entanglement with government money.
There may come a day in the not too distant future when religious colleges and univesities will be faced with a choice: capitulate to the secular orthodoxy or ween yourself from the government teat. The Blaine Amendments unintentially shield many primary and secondary schools from this choice. Over a decade ago, James Dwyer wrote Vouchers Within Reason, which argued that vouchers might provide a way to bring relgious schools and their parental patrons to heels without have to padlock school doors or put parents in jail (his words, not mine). When I reviewed his book, less than a decade after the Religious Freedom Restoration was enacted with overwhelming bi-partisan support, I was hopeful that government strings attached to vouchers would not threaten the character and culture of these religious schools. I am much less hopeful today and therefore am inclined to see the Blaine Amendments as an unexpected blessing. Rick, I'd be interested in your take.
Friday, July 18, 2014
I learned much at the Libertas Workshop on religious liberty at Villanova and am grateful to Michael, Marc, Zach, and the other participants for an engaging three days.
Chapter 9 of John Courtney Murray’s “We Hold These Truths” has given me much food for thought. I have heard it said that the United States through Murray’s work gave the Church its modern understanding of religious liberty expressed formally in Dignitatis Humanae. But Murray, at least the Murray of Chapter 9, seems deeply skeptical of the American understanding of religious liberty. At one point, he writes: “Modernity rejected the freedom of the Church, in the twofold sense explained, as the armature of man's spiritual freedom and as a structural principle of a free society.” In other words, free society requires not merely freedom of individual consciences but freedom of the institutional church. In fact, freedom of conscience depends on and is formed within the cradle of the church, which must be free to define and shape its own destiny.
This raises several questions for me. 1) Did the Catholic Church adopt an American understanding of religious liberty in Dignitatis Humanae or did it learn from the American experience while developing its own distinctive understanding? 2) To what extent is freedom of the church possible in a religious pluralistic nation such as ours? 3) Is freedom of the church inconsistent with an American/Protestant understanding of churches as voluntary associations? 4) Is the level of dissent within the Catholic Church today due – at least in part – to the cultural acceptance even within the church of an atomized freedom of conscience weakly tethered if at all to the Church operating in its freedom? 5) Should the bishops exercise their teaching authority within the Church to clearly articulate where the American concept of religious freedom convergences and diverges from the Church’s self-understanding?