mykeystrokes.com

"Do or Do not. There is no try."

“GOP Anger Cannot Obscure Legal Reality”: On Immigration Policy, The Law And Facts Are On Obama’s Side

There is an adage every young lawyer learns: If you have the law, pound the law; if you have the facts, pound the facts. But if you have neither, pound the table.

The heated Republican rhetoric in response to President Obama’s immigration announcement is unquestionably table-pounding. His opponents have neither the law nor the facts on their side, so they have resorted to name calling and threats. House Speaker John Boehner (R-OH) issued a news release referring to “Emperor Obama,” while Sen. Ted Cruz (R-TX) accused him of being like a monarch and of having a “temper tantrum.” Some conservative legislators have called for censuring the president, or even initiating impeachment proceedings.

As a matter of law, however, it is absolutely clear that Obama has the authority to decide not to prosecute or deport anyone he chooses. Prosecutorial discretion is an inherent part of presidential power. The Supreme Court in United States v. Nixon declared: “The Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

No one believes that the federal government has to prosecute every violation of every federal crime or to deport every person who is eligible for deportation. The federal government, for example, long has not prosecuted people caught with small amounts of marijuana even though it violates the federal controlled substance act.

Choices about whether to prosecute are based on a wide array of policy considerations, including how to best allocate scarce prosecutorial resources and whether enforcing a law produces desirable outcomes. Constitutionality is another issue that can be taken into account. It is well established that the president does not have to enforce laws that he believes to be unconstitutional; indeed, to do so would violate his oath of office to uphold the Constitution. Nor does the president have to enforce laws that he believes to be unwise.

All of this is especially clear in the area of immigration policy. The Supreme Court long has recognized that immigration and deportations are closely tied to foreign policy, which is uniquely in the domain of executive power and control. The executive discretion granted by the Constitution certainly includes deciding whether to bring deportation proceedings. Throughout history, the federal government has chosen — for humanitarian concerns or foreign policy reasons — to not try to deport some individuals or classes of individuals, even though they are not lawfully in the United States.

Republican presidents have used this discretion as much as Democratic ones. In 1987, in a decidedly political move by a president who opposed the Sandinista regime, the Reagan administration took executive action to stop deportations of 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, to advance his foreign policy, stopped deportations of Chinese students and in 1991 prevented hundreds of Kuwait citizens who were illegally in the United States from being deported. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of the Salvadoran president, ordering that deportation decisions include consideration of factors such as whether a mother was nursing a child or whether an undocumented person was a U.S. military veteran.

All of the Republican anger cannot obscure the legal reality: Obama has the authority to decide to suspend deportations. Likewise, the facts support Obama. A cruel aspect of immigration policy is that it often separates parents, who are in the United States illegally, from their children who are U.S. citizens because they were born in this country.

Nora Sandigo, in Miami, has a sticker in her car that says “Every child is a blessing.” It is a reminder for her as she drives around to pick up yet another child whose parents have been deported. Since 2009, Sandigo has taken legal guardianship of 812 U.S. citizens whose parents have been deported. “La Gran Madre” is what many call her, but she knows her limitations. “All I can do is hold back some of the bleeding. There is no way I can give 812 children the love and attention they need, but … the system is broken.”

It is estimated that there may be as many as 5 million parents in this situation. The irony is that Republican rhetoric for years has emphasized “family values,” but it is Obama who is acting in a profoundly pro-family way.

 

By: Erwin Chemerinsky, Dean of the University of California, Irvine School of Law and Samuel Kleiner, a fellow at the Yale Law Information Society Project; Published in The National Memo, November 24, 2014

November 25, 2014 Posted by | Immigration Reform, Presidential Powers, Republicans | , , , , , , , , | Leave a comment

“A Growing Fissure Within The Tea Party Movement”: Tea Party Nativists Seething Over Obama’s Immigration Reform Action

Even before President Obama entered the East Room of the White House to give his speech outlining a series of executive actions on immigration reform, some, though not all, national Tea Party factions were whipping up their followers into a nativist frenzy.

“This is by far the most serious communication I have ever sent,” wrote Steve Eichler, executive director of the 1776 Tea Party (aka TeaParty.org), in an email to supporters.  “Everything is at stake. Illegals will bankrupt our social, economic and financial systems. Terrorists will just blow it all to pieces. They’ll all be in our backyards in a matter of weeks, even days, if we don’t step up and demand action,” he warned.

That type of feverish nativism is no surprise coming from Eichler, who is also the executive director of the anti-immigrant vigilante group, the Minuteman Project. His email went on to predict “open rebellion” and “chaos” if Republicans don’t withhold funding for Obama’s executive order.

Echoing Eichler’s terror hysteria was one of the activists who helped shape the early Tea Party movement. Eric Odom, who now works for the Patriot Action Network, a Tea Party faction, also put forward the notion that executive action on immigration would somehow lead to terrorists destroying America.

What makes it so dangerous is that Obama’s announcement says to all of our enemies that now is the time to invade our nation’s borders. We’re no longer talking about innocent women and children riding trains to our borders then crossing with the hopes of gaining access to our welfare system. We’re talking about ISIS and other evil groups who want to embed individuals here with the plan of doing harm.Essentially, our President just made a proclamation that puts American lives, and the security of our nation, directly at risk. Obama said to the world that if they can get across our borders, we will not send them home. We will not enforce our immigration laws.

Grassfire, parent outfit of the Patriot Action Network, added “With his amnesty announcement in just a few hours, Obama will unilaterally defy the will of the people and Congress –becoming a threat to liberty.”

Judson Phillips of Tea Party Nation went even further in denouncing President Obama, arguing that the immigration actions were part of a diabolical plot. In a prebuttal to Obama’s speech, Phillips told Tea Party Nation members, “Today, Barack Obama is going to announce his long-cherished goal of destroying America.”

Phillips, a birther racist and advocate of limiting voting to property owners, isn’t new to nativist extremism. In 2011, his group mourned the falling birth rate of native-born Americans, and warned that “American culture” will soon perish since the “White Anglo-Saxon Protestant (WASP) population is headed for extinction.”

Eichler, Odom, and Phillips weren’t the only Tea Partiers to adopt an inflammatory pose. Echoing their sentiments was Kansas Secretary of State Kris Kobach, a favorite among Tea Party nativists, who warned portentously that President Obama’s executive actions and general “lawlessness” on immigration could lead to “ethnic cleansing.”

Congressman Lamar Smith (R-TX) also joined the fray, contending that President Obama’s immigration executive order is “declaring war on the American people and our democracy.”

“This is truly an emergency. There’s not a moment to lose,” wrote Tea Party Patriots co-founder Jenny Beth Martin to her group’s members last Wednesday. While other Tea Party groups are busy inflaming nativism sentiment, the Tea Party Patriots are crafting a plan to scuttle any immigration reforms.

Having already primed their members with the October release of the gruesome anti-immigrant video, The Border States of America, Tea Party Patriots are focused now on organizing opposition.

As a first step, they plan to “melt the phones to stop amnesty” by having their members contact Congress en masse to register opposition. The next step is to flood congressional offices with protesters. According to Martin, the group “must deploy our thousands of local affiliates to congressional offices all across the country, demanding that they cut off all funding from this order immediately.” But the Tea Party Patriots do not have the “thousands of local affiliates” as Martin claims; instead they have around 300 remaining active local groups.

They plan to deploy those remaining local groups, however, to pressure the new Congress to defund anything relating to immigration reform. Kevin Broughton, a spokesperson for Tea Party Patriots, noted, “We expect [the new GOP majority] to use the power of the purse to defund amnesty, especially those—and there were many—who ran against it.”

The group is also canvassing its membership base to gauge possible attendance for a noon rally on December 3 in Washington D.C. called by the founder of the House Tea Party Caucus, retiring congresswoman Michele Bachmann. The decision to possibly join Rep. Bachmann’s rally came after she declared on Wednesday that executive action on immigration will lead to a flood of “illiterate” voters.

Previous Tea Party Patriots anti-immigration rallies in Washington D.C., such as the muddled Immigration/IRS rally on June 19, 2013 on Capitol Hill have not been well attended, so larger attendance at a December rally would be an indicator of some success for efforts to promote nativism without one of the largest Tea Party factions.

Not all national Tea Party factions are in agreement with the Tea Party Patriots’ plan. Obama’s move on immigration has uncovered a growing fissure within the Tea Party movement over the centrality of nativism. Curiously, while Tea Party Patriots, Patriot Action Network, and the 1776 Tea Party were rushing to sound more and more xenophobic  (and fundraising off the issue), some Tea Party factions tried to dance around the immigration issue, while others stayed conspicuously silent.

Indeed, although many members of the FreedomWorks social network were outraged by the president’s announcement last week, the organization’s leadership chose to duck the issue. FreedomWorks completely sidestepped the topic of immigration, choosing instead to concentrate the organization’s message on tried-and-true Obama bashing.  In a pre-speech press release, FreedomWorks president Matt Kibbe took a page from the GOP establishment playbook, sticking to the line about the president being an “emperor” and railing against the “expansion of executive power.”

Said Kibbe, “The president’s announcements tonight have nothing to do with immigration. This fight has to do with whether or not we are a country with laws and a separation of powers designed to protect the will of the American people from the arbitrary actions of Washington insiders.”

As other Tea Party groups have dug in for a massive fight around immigration, FreedomWorks appears fixated on getting Congress to let the Export-Import Bank expire. In fact, many in the Tea Party movement have been suspicious of FreedomWorks because of their unwillingness to wholeheartedly embrace nativism.

Unlike all the other factions, Tea Party Express hasn’t uttered a peep about the issue. That could be because the group is hoping not to call attention to the pro-immigration reform stance that Sal Russo, a Tea Party Express co-founder, expressed in an article for Roll Call last spring.

Russo’s commentary, titled “Conservatives Need to Fix the Broken U.S. Immigration System,” called for an approach remarkably similar to that proposed by the president. “We need to make the 11 million people who are here illegally obey the law, pay taxes and come out of the shadows. We have to get them right by the law in exchange for legal status, but not unbridled amnesty,” he wrote.

In the past, these disagreements have caused strains between various organizations in the network that comprises the Tea Party movement. Obama’s executive order is the first major test of these policy differences in years, and Tea Party organizations may well be held to account for their positions.

Expect the caution initially evident among Republican leadership to vanish if the Tea Party successfully mobilizes anti-immigrant sentiment. Given the vitriolic nativist tone already circulating in Tea Party circles, and the fusion of nativism with hatred of the first African-American president, the coming mobilization could make the ugly rancor and racism that erupted during the passage of Obamacare look polite. At the same time, if supporters of human rights stand strong for immigration reform and actively combat nativism, it could protect immigration reform gains for the long term and even split the Tea Party.

 

By: Devin Burghart, The National Memo, November 24, 2014

November 25, 2014 Posted by | Executive Orders, Immigration Reform, Tea Party | , , , , , , , | Leave a comment

“Forcing The Contradictions Of The GOP”: With Immigration Action, Obama Calls His Opponents’ Bluff

Obama’s decision to back away from our government’s policy of ripping apart the families of undocumented immigrants has called forth utterly contradictory responses from Republicans and Democrats, conservatives and progressives. It should now be clear that the two sides don’t see the facts, the law or history in the same way.

Conservatives say the president’s executive actions on immigration are uniquely lawless and provocative. Progressives insist that Obama is acting in the same way that President Reagan and both presidents Bush did. They recall that after the second President Bush’s immigration reform bill failed in the Senate in 2007 — it was very similar to the 2013 bill Obama supports — White House spokeswoman Dana Perino declared flatly of the administration’s willingness to use its executive powers: “We’re going as far as we possibly can without Congress acting.”

Yet perhaps facts are now irrelevant. There was an enlightening moment of candor when Sen. Tom Coburn (R-Okla.) visited MSNBC’s “Morning Joe” on the morning of Obama’s immigration speech. “The president ought to walk into this a lot more slowly, especially after an election,” Coburn said. “This idea, the rule of law, is really concerning a lot of people where I come from. And whether it’s factual or perceptual, it really doesn’t matter.”

Yes, for many of the president’s foes, the distinction between the “factual” and the “perceptual” doesn’t matter anymore.

But mainstream Republicans seem as angry at Obama as the tea partyers. They argue repeatedly that by moving on his own, Obama has made it impossible for Congress to act.

You’d think that Republicans who genuinely support immigration reform would want to prove the president wrong in a different way: by passing a comprehensive bill. That only a few of them are saying this is an obvious sign to the president’s supporters that Obama is right in suspecting that the House GOP would continue to bob and weave to avoid the issue — as it did for the one year, four months and 24 days between the passage of the genuinely bipartisan immigration reform bill in the Senate and Obama’s announcement.

In a superb reconstruction of why the president decided to move on his own, Washington Post reporters Juliet Eilperin, Ed O’Keefe and David Nakamura note that the last straw for Obama was House Speaker John Boehner’s refusal to say after the election that he would bring up an immigration bill if the president agreed to postpone executive action. In the absence of concrete pledges that something would get done, there was no point in waiting any longer.

All this explains the jubilation among progressives. They not only agree with the substance of what Obama did but also see him as finally calling his opponents’ bluff. He has forced the contradictions of the Republican establishmentarians into the sunlight.

Such Republicans were counting on Obama to be an enabler. He’d once more accept their quiet (and now obviously hollow) promises of goodwill and thus allow them to avoid a straight up confrontation with the right wing of their party.

Now, they can no longer have it both ways. Many of them claim they agree with the substance of what Obama did and also that Congress should pass a broader immigration bill. If this is true, then why should they spend all their energy trying to undo the constructive steps he has just taken? If they punt and simply join the rancid attacks on Obama as an “emperor” and a “monarch,” they will demonstrate for all to see that the GOP really is dominated by its right wing and that those of more measured views are simply too timid to take on their internal adversaries.

No wonder they’re so angry with the president.

For the six years since Obama’s election to the presidency, the Republican right has been on offense, continually blurring those distinctions between the “factual” and the “perceptual.” They keep charging that Obama is a dangerous radical even when he pursues middle-of-the-road policies. Their supposedly more temperate colleagues go along because they don’t have to pay a price.

Obama has just told them their free ride is over. The stakes in American politics will be much clearer because he did.

 

By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, November 23, 2014

 

 

November 25, 2014 Posted by | Executive Orders, Immigration Reform, John Boehner | , , , , , , | 1 Comment

“Please Proceed Senator”: Ted Cruz Wants To Fight Obama Over Immigration, But He Forgot About One Thing

Sen. Ted Cruz (R-Texas) is calling for congressional Republicans to fight back against President Barack Obama’s executive action on immigration, saying they should refuse to confirm the president’s nominees until he reverses course.

“If the president announces executive amnesty, the new Senate majority leader who takes over in January should announce that the 114th Congress will not confirm a single nominee — executive or judicial — outside of vital national security positions, so long as the illegal amnesty persists,” Cruz wrote in a recent Politico Magazine op-ed.

There is obviously some political risk in Republicans pursuing such a strategy, given the presidential election in two years and a Senate landscape that looks more favorable for Democrats to regain control in that election.

But during an interview with Cruz on “Fox News Sunday,” host Chris Wallace pointed out another potential downside to blocking Obama’s nominations: Attorney General Eric Holder, a constant source of irritation for Republicans, would get to stay in his job longer. Holder announced in late September that he planned to retire, and earlier this month, Obama nominated Loretta Lynch, the U.S. attorney for the Eastern District of New York, to take his place. Holder has stated that he will remain in his position until his successor’s nomination is confirmed by Congress.

“Are you saying that the Senate should refuse to confirm Loretta Lynch, the president’s new nominee for attorney general, and thereby leave Eric Holder, who you don’t like very much, in that position even longer?” asked Wallace.

Cruz largely avoided Wallace’s question, simply saying that Republicans “should use the constitutional checks and balances we have to rein in the executive.”

Wallace, however, persisted, and asked the question again. This time, Cruz still did not state directly that the Senate should block Lynch, but implied as much by saying that only positions of “vital national security” should get to the floor for a vote.

“In my view, the majority leader should decline to bring to the floor of the Senate any nomination other than vital national security positions,” the senator said. “Now, that is a serious and major step.”

In a prime-time address Thursday night, Obama announced that because Congress had failed to pass immigration reform, he would use his executive authority to bring deportation relief to 4 million or more undocumented immigrants.

The president’s executive action will protect undocumented parents whose children are U.S. citizens or legal permanent residents, as well as immigrants who came to America as children and others with long-standing ties to the country, from being deported.

Obama defended his actions in an interview with George Stephanopoulos, host of ABC’s “This Week,” that aired Sunday morning. “The history is that I have issued fewer executive actions than most of my predecessors, by a long shot,” he said. “The difference is the response of Congress, and specifically the response of some of the Republicans.”

“But if you ask historians, take a look at the track records of the modern presidency, I’ve actually been very restrained, and I’ve been very restrained with respect to immigration,” Obama added. “I bent over backwards and will continue to do everything I can to get Congress to work because that’s my preference.”

 

By: Amanda Terkel, The Huffington Post, November 23, 2014

November 24, 2014 Posted by | Eric Holder, Immigration Reform, Ted Cruz | , , , , , , | Leave a comment

“Obama Calculates The Human Cost Of Deportations”: It’s Past Time To Stop The Stupidity And The Lack Of Humanity

The commemorations of the 25th anniversary of the Berlin Wall’s fall have thrust into the public spotlight the border guard who ordered the gates opened. The subject of both a new German-language book and film, one-time Stasi Lt. Col. Harald Jäger has recounted why he defied his orders. And his story couldn’t be more relevant to the debate consuming our own nation.

On the evening of Nov. 9, 1989, prompted by an erroneous announcement from an East German Politburo spokesman that his compatriots would be free to cross the border, thousands of East Berliners flocked to the checkpoint Jäger supervised. His superiors told him to keep the gates closed, though he could let a few people through, provided he marked the passports of those he determined were activists and blocked their reentry when they came back.

When one such young couple returned from the West, going home to their small children, Jäger saw that while the wife could reenter, her husband’s passport had been stamped, forbidding his return. Jäger faced a choice. “My responsibility was clear — enforce the law and split the couple,” he recalled to the Financial Times. “But at that moment it became so clear to me . . . the stupidity, the lack of humanity. I finally said to myself, ‘Kiss my arse. Now I will do what I think is right.’ ” He let the couple in. Then he commanded the guards to throw open the gates. The rest is history — and a lesson to a nation now embroiled in a different, but not that different, contest between the imperatives of custom and law, as some construe it, and those of keeping families together.

Of the thousands of words written lately on President Obama’s impending order to exempt some undocumented immigrants from the threat of deportation, most have dealt with the politics of the issue, not the humanity behind it. What the media have largely failed to emphasize is that Obama’s order will be shaped almost entirely by the imperative of keeping parents with their children. The administration is planning to allow the undocumented parents of children born here (and who are, thus, U.S. citizens) to stay and receive work permits. Unfortunately, this will not include parents of the “dreamers” who are already protected by executive order from deportation.

What the pundits have tended to overlook, as well, is the humanity behind Obama’s apparent willingness to act without congressional approval. Every year since Obama became president, the government has deported roughly 400,000 undocumented immigrants, with little regard to whether they’ve broken any law save crossing the border without papers or overstaying their visas — or whether their kids are wondering where their parents have gone. On Tuesday, the Pew Research Center reported that in 2012, some 13 percent of schoolchildren in both Texas and California had at least one undocumented parent. That’s a lot of parents, a lot of kids.

It’s not as if Obama hasn’t waited for Congress to address the immigration conundrum. Nearly 18 months ago, a bipartisan majority of 68 senators passed an Obama-backed bill that would have significantly augmented our border security forces and provided a long and tortuous pathway to legalization for an estimated 11 million undocumented immigrants. The Republican-controlled House refused to take up the bill, however, though it likely would have passed. Speaker John Boehner and other GOP leaders declined to risk the ire of the nativists in their ranks.

So long as Republicans — many of them from heavily gerrymandered districts with few Latino voters — continue to control the House, that chamber isn’t likely to enact any serious immigration reform. It is likely, however, that the House will stay in Republican hands until at least the first election following the next decennial redistricting — that is, until 2023. Should the wave of deportations without regard to family status continue until then, the number of broken families could easily rise into the millions.

Obama has no doubt calculated the political risks and advantages of acting alone; he could be sued for political malpractice if he didn’t. He believes, rightly, that the president has the authority to direct immigration officials to exempt particular groups from detention and deportation. But beyond the political and legal calculations are those that are simply human.

None of this is to equate the legitimacy of our laws and policies to those of the late, unlamented East Germany. But even democracies can, and not infrequently do, violate the most elemental human rights. Stripping children of their parents is such a violation. It’s time — past time — to stop the stupidity, the lack of humanity.

 

By: Harold Meyerson, Opinion Writer, The Washington Post, November 19, 2014

November 24, 2014 Posted by | Congress, Executive Orders, Immigration Reform | , , , , , , , | Leave a comment

« Previous Entries     Next Entries »