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“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

“We Were Strangers Once Too”: President Obama Announces Executive Order For Deportation Relief

President Barack Obama on Thursday announced plans to sign an executive order sparing up to 5 million unauthorized immigrants from deportation, arguing that congressional inaction left him little choice but to use his executive authority on the issue.

In the summer of 2013, Obama noted, the U.S. Senate passed a comprehensive immigration reform bill on a bipartisan 68 to 32 vote, raising advocates’ hopes that an overhaul was in sight. But House Speaker John Boehner never brought the measure to a House vote, and Obama took Congress to task for its failure to act in his Thursday evening address. House Republicans, Obama charged, “refused to allow that simple vote.”

Until Congress moves on the issue, Obama said, the best path forward is executive action. In his speech, the president laid out a three-point plan. First, the U.S. will beef up border security and continue to focus on capturing unauthorized migrants attempting to cross into the U.S. The president will also establish incentives that will keep highly skilled immigrants in the country — a top priority for GOP-leaning business groups, Finally — and most controversially — Obama said his administration would “deal responsibly” with unauthorized immigrants already in the country.

Emphasizing that the U.S. would continue to deport immigrants deemed security threats, Obama said that he would order agencies to prioritize the most dangerous unauthorized immigrants for deportation. “Felons, not families” and “criminals, not children” would be the focus of U.S. enforcement efforts, the president said. The president referenced the nation’s immigrant history, saying, “we were strangers once too.”

The president’s plan expands the Deferred Action for Childhood Arrivals (DACA) program for those brought to the U.S. as minors; the program will no longer have an age cap. More crucially — contingent on passing a background check — parents of U.S. citizens or legal residents who have themselves been in the U.S. for at least five years will be spared deportation. That protection alone affects an estimated 4 million people.

Obama cautioned that the changes do not apply to any migrants who recently arrived in the U.S. or those who may come in the future.

The president’s invocation of executive authority on the issue drew the ire of conservative Republicans, including incoming Senate Majority Leader Mitch McConnell, who said executive action would represent a “defiance of the people.” The president is poised for a showdown with the GOP over the issue when a unified GOP Congress takes control in January.

“The actions I’m taking are not only lawful, they’re the kinds of actions taken by every single Republican president and every Democratic president for the past half century,”  Obama said in his address. “To those members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill.”

Progressives cheered the president’s announcement.

“Today, parents who have lived here for years and had to constantly worry that they could be torn away from their children will no longer have to look over their shoulders. With House Republicans continuing to block immigration reform legislation in Congress, the president is taking a bold step that is fully within his authority to begin fixing the system,” said Neera Tanden, president of the Center for American Progress and a former Obama administration aide.

 

By: Luke Brinker, Salon, November 20, 2014

November 21, 2014 Posted by | Executive Orders, Immigration Reform, Presidential Powers | , , , , , , , | Leave a comment

“Ensuring A Fair Policy”: Reagan And Bush Acted Unilaterally On Immigration, Too—For The Same Reason That Obama Will

On Tuesday, the Associated Press reported that two previous Republican presidentsRonald Reagan and George H.W. Bushhad taken unilateral action to protect undocumented immigrants from deportation, and the political reaction was much less vitriolic than what Obama has faced as he prepares to make a similar move. Conservatives, notably The Atlantic’s David Frum and National Review’s Mark Krikorian, quickly pushed back. Frum argues that, while legal, Obama’s upcoming executive action would be an unprecedented violation of political norms. Krikorian goes further, calling it “Caesarism, pure and simple.” But in the end, though they differ in their vehemence, both Krikorian and Frum’s analyses do more to reveal the flaws in the conservative position than prove the lawlessness of Obama’s upcoming action.

Krikorian and Frum’s main argument is that Reagan and Bush’s unilateral actions were simply fixes to the 1986 immigration law that granted green cards to three million undocumented immigrants. Reagan and Bush discovered that, due to an unintended consequence of that law, many spouses and kids of newly-legalized immigrants faced deportation, potentially tearing families apart. In response, Reagan and Bush implemented “cleanup measures,” as Krikorian terms them: In 1987, Reagan’s Immigration and Naturalization Service announced that kids of newly-legalized immigrants would not be deported; Bush extended those protections to spouses in 1991.

According to Krikorian and Frum, these actions reflected Congress’s intentions because the legislative branch codified Reagan and Bush’s executive action into law in 1992. “Reagan and Bush acted in conjunction with Congress and in furtherance of a congressional purpose,” Frum writes. “Nobody wanted to deport the still-illegal husband of a newly legalized wife. Reagan’s (relatively small) and Bush’s (rather larger) executive actions tidied up these anomalies.” In other words, it would be unfair if Reagan and Bush deported children and spouses of newly-legalized immigrants. In fact, Bush’s executive action was called the “family fairness” program.

In contrast, they argue, Obama’s executive action is not what Congress intended. “A new order would not further a congressional purpose,” Frum writes. “It is intended to overpower and overmaster a recalcitrant Congress.” Krikorian was even more emphatic: “Whatever their merits, the Reagan and Bush measures were modest attempts at faithfully executing legislation duly enacted by Congress. Obama’s planned amnesty decree is Caesarism, pure and simple.”

What both Frum and Krikorian’s analyses fail to explain is how Obama’s planned action is not a faithful attempt at executing the law. You can’t argue that Obama’s “order would not further a congressional purpose” without explaining what Congress’s purposes are in passing immigration laws. This error isn’t unique to Frum or Krikorian: Conservatives often fail to use a legal framework in analyzing Obama’s action.

In August, I employed such a framework to explain why Obama’s executive action is legal because it’s based on the idea of prosecutorial discretionthe federal government has only limited resources to implement laws and must prioritize them accordingly. But prosecutorial discretion has limits because Congress has the sole authority to write laws. If the president’s actions do not uphold Congress’s prioritiesor, in Frum’s words, further a congressional purposeit crosses the line into lawmaking.

A major priority of immigration law is deterrence. The more the federal government allows undocumented immigrants to stay and work legally in the United States, the more it incentivizes foreigners to come here illegally. That’s why conservatives see Obama’s executive actions as an unfaithful execution of the law. But Congress has other, competing priorities in passing legislation. They want laws to be uniform, predictable and fair, for instance.

When the federal government implements immigration law, it must balance these priorities. In other words, the benefits of making the immigration system fairer must be greater than the costs of reducing deterrence. To an extent, of course, these are subjective judgments. But as long as Obama, or any president, for that matter, is implementing the law in line with congressional prioritiesas I believe Obama ishis actions are legal.

In applying this framework to Obama’s upcoming executive action, the law supports the administration’s position. The change in immigration policy may remove a deterrent for foreigners considering illegally immigrating to the U.S. But the drop in deterrence is small, since the potential beneficiaries of Obama’s action must have lived in the U.S. continuously for many years. Foreigners cannot come into the country illegally under the expectation that the president will soon grant them protection from deportations.

On the other hand, the benefits of these actions are significant. They allow undocumented immigrants to come out of the shadows, work legally, and receive legal protections under U.S. law. They no longer have to worry about a discriminatory immigration system. Maybe most importantly, the new policy will prevent families from being torn apartwhich was the main reason behind Reagan and Bush’s executive actions, which Frum and Krikorian believe was justified.

It’s impossible to pick a specific point where the costs outweigh the benefits of Obama’s actions. As Obama shields more undocumented immigrants from deportation, the costs of the policy grow significantly. He risks crossing the line from upholding congressional priorities into lawmaking. But conservatives haven’t offered a legal framework to explain how Obama’s expected executive action crosses that line. Bush and Reagan’s actions were legally acceptable for the same reason Obama’s would be: ensuring that our immigration policy is fair.

 

By: Danny Vinik, The New Republic, November 19, 2014

November 21, 2014 Posted by | Immigrants, Immigration Reform, Presidential Powers | , , , , , , , , | Leave a comment

“It Isn’t About The Substance At All”: Why Republicans Are So Mad About Obama’s Immigration Order

President Obama is going to detail some executive actions he plans to take on immigration in a speech tonight, and you may have noticed that the debate over this move is almost completely void of discussion of the particulars. Instead, we’re discussing whether Obama is exceeding his powers. That’s an important question to address, but it also frees Republicans (for the moment anyway) of having to visibly argue for things like deporting the parents of kids who are already allowed to stay in the United States.

One thing you’ll notice as you watch coverage of the issue is that Republicans are seriously pissed off at Obama. And not in the faux outrage, pretend umbrage way—they are genuinely, sincerely angry. And while there may be a few here or there whose blood boils at the thought of an undocumented immigrant parent not living in constant terror of immigration authorities, for the vast majority it isn’t about the substance at all. So what is it about? Here’s my attempt at explaining it.

Obama is not showing sufficient deference to their midterm election win. Republicans just won an election, and like any party that wins an election, they feel that the American people validated all of their positions and everything they’d like to do, and rejected those of Democrats. There are reasonable arguments to be made against this belief. For instance, you could point out that since turnout in this election was an abysmal 36 percent and Republicans got a little over 50 percent of the votes for the House, they actually got a thumbs-up from only 19 percent of the electorate, which isn’t exactly “the American people.” Or you could note that if you add up the votes received by all 100 senators in the new GOP majority, the Democrats actually got 5 million more votes. These things may be true, but they don’t reduce the Republicans’ sincere belief that they have the people behind them. Whether they actually expected Obama to put aside his entire agenda because of the election, the fact that he shows no interest in doing so is obviously maddening to them.

Obama is backing them into a political corner. Republicans would frankly prefer not to have to talk about immigration at all, outside election-year pitches to primary voters about broken borders. Their fundamental dilemma is that on the local level, most of them have constituencies that are deeply hostile to immigrants and opposed to comprehensive reform, yet on the national level, the party must make inroads with Hispanic voters to  have hopes of winning the White House. A big confrontation over immigration puts their crazy nativists like Steve King on the news and serves to convince those Hispanic voters that the GOP has nothing but contempt for them and people like them. Those crazy people are convinced that a big part of the motivation for Obama’s move is to create new Democratic voters (which it wouldn’t do), while the more sensible ones worry that it will make their task of winning Hispanic votes even harder (which it will do).

This move also seizes the agenda from them, in a way that divides Republicans against themselves. As Lisa Mascaro and Michael Memoli reported in an excellent article in today’s L.A. Times, “Republican leaders who had hoped to focus on corporate tax reform, fast-track trade pacts, repealing the president’s healthcare law and loosening environmental restrictions on coal are instead being dragged into an immigration skirmish that they’ve tried studiously to avoid for most of the last year.”

The only real way for them to stop him is to shut down the government, and they’re also probably mad that he has forced them into that internal and external debate. Not only are they now arguing amongst themselves about it (again), it means they have to put up with a lot of “Are you going to shut down the government?” questions from reporters, which have as their subtext, “Are you going to prove all over again what a bunch of reckless maniacs you are?” Their attempts to argue that if there’s a shutdown it will be Obama’s fault and not theirs will inevitably be rejected by both the press and the public, leading to even more resentment, since they feel as though they’ll be blamed for something that is his fault.

Aggressive Obama is bad Obama. Let’s face it, many if not most Republicans have never considered Barack Obama a legitimate president. This applies not just to Republican voters—49 percent of whom believed that ACORN stole the 2012 election for him, which would have been particularly difficult for the organization to accomplish given that it ceased to exist in 2010—but to its elected officials as well. Although it has calmed down of late, let’s not forget just how many years Obama spent trying to persuade people that he is, in fact, an American, including producing his birth certificate. Republicans have in the past viewed any Democratic president as having suspect legitimacy, but it’s been worse with Obama than prior presidents.

For that reason, Republicans have found even the most mundane exercise of his presidential power to be deeply disturbing. His bold move of hiring people to work on the White House staff was met with horrified cries that he had created “czars” who were wielding despotic and unaccountable power. When he set rules for federal contractors, as every president does, they were aghast. These kinds of things didn’t bother them when Republican presidents did them not only because they agreed with the substance of whatever those presidents were doing, but also because they regarded those presidents’ power as legitimately held. Over time, the narrative of Obama’s “lawlessness” took hold on the right, and ended up being applied to almost any executive branch action they didn’t like. In this case, he actually is approaching the limits of his authority, which makes it all the worse.

Obama is making them feel impotent. This is where all the other pieces come together. Being in the opposition party can be frustrating, because your role is fundamentally not to do things, but to try to stop the president from doing things. That’s an important task, but it isn’t quite as satisfying as remaking the country to suit your vision. Republicans’ greatest fear about this is that Obama will go ahead and do what he wants and they won’t be able to stop him, even though they worked so hard to gain full control of Congress after six long years. They won the election, his approval ratings are low, they firmly believe they’re right, and yet this president they loathe so much is about to just walk all over them anyway. No wonder they’re mad.

 

By: Paul Waldman, Contributing Editor, The American Prospect, November 20, 2014

November 21, 2014 Posted by | Immigrants, Immigration Reform, Presidential Powers | , , , , , , , | 2 Comments

   

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