“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
“Artificial Republican Unity On Immigration”: There’s No Reason For Progressives To Be Defensive About Obama’s Actions
The grand irony of the president’s immigration action is that it was to a considerable extent the product of intra-Republican disunity on immigration policy–yet it will unite the GOP in real and fake outrage.
For all the yelling and screaming about “Emperor Obama,” his action was temporary and could be instantly revoked by a Republican president or superseded by legislation from a Republican Congress. But Republicans are in complete disarray on the subject, though there is a distinct trend towards “deport ’em all” nativism (though not the will to provide the resources necessary to “deport ’em all,” which would make actions like Obama’s impossible).
At present, though, the Establishment Republicans who privately view their nativist “base” as a bunch of destructive yahoos can join with said yahoos in an orgy of recrimination, mooting their agreement with the substance of what Obama is doing even as they pretend they believe the procedure is the greatest threat to democracy since yadda yadda yadda.
So the appropriate response of progressives to what we’re going to hear over the next weeks and months is: What do you propose to do about it? Can Republicans agree on an immigration policy (no, “securing the border first” is not an immigration policy, but at most a component of one)? What should this and future administrations do in the face of a gigantic gap between the number of undocumented people in this country and the resources to deal with them? Is using the fear of deportation to encourage “self-deportation” what you want? And if you do want to “deport ’em all,” then exactly how much money are you willing to appropriate for police dogs, box cars, whips, holding cells, and so on and so forth? Do you suggest we just suspend the Constitution and have us a good old-fashioned police state for a few years until we’ve deported 11 million people?
And if Republicans actually have the guts to go against their “base” and take on comprehensive immigration reform, there’s this little matter of the bipartisan bill that’s been languishing in the House for seventeen months. John Boehner could at any moment bring it up and pass it with Democratic votes. Why isn’t that at least on the table?
These sort of questions should be asked early and often. There’s no reason for progressives to be defensive about Obama’s action. Republicans made it necessary. Let them tell us exactly what they would do if they were in power.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, November 21, 2014
“A Party In Search Of A Policy”: Republicans Don’t Seem To Want To Do Anything Except Stop Obama From Solving Problems
If anger were a legitimate substitute for public policy, Republicans would be in excellent shape in the middle of a debate on immigration. The GOP has stockpiled enough rage, fury, insults, and red-hot disgust to last a lifetime. There isn’t a shred of doubt in anyone’s mind that the entirety of the Republican Party is experiencing genuine, 100%, Grade A outrage.
What Republicans don’t have is a policy.
Or anything resembling a serious, substantive approach to the issue at hand.
A few days ago, Rep. Tim Huelskamp (R-Kan.), a strident, right-wing voice in his party on immigration, sat down with Mark Halperin, who asked what the congressman would do about the nation’s immigration challenges. Huelskamp dodged, so Halperin, to his credit, followed up, pressing the Kansas Republican to explain what he’d do about the millions of undocumented immigrants living in the United States. Huelskamp dodged again. So Halperin asked a third time, and the Republican would only say, “I want to know how many folks are here. I want to secure the border.”
It was uncomfortable to watch – the far-right congressman was clearly lost – but it was a cringe-worthy reminder that Republicans still don’t have a coherent immigration policy they’re willing to share out loud. Ezra Klein had a good piece on this overnight.
Republicans aren’t just the opposition party anymore. They are, arguably, the governing party – they will soon control the House, the Senate, the Supreme Court, most state legislatures, and more governorships. And the governing party needs to solve – or at least propose solutions – to the nation’s problems. And that means the Republican policy on immigration needs to be something more than opposing Obama’s immigration policies. It needs to be something more than vague noises about border security. […]
There are 11 million unauthorized immigrants living in the country right now. Congress allocates enough money to deport roughly 400,000 of them annually. Our policy towards the 10.6 million unauthorized immigrants we’re not deporting is that we don’t have a policy. Democrats support a path to citizenship. Republicans don’t support anything.
Quite right. There’s a striking asymmetry, not just between Democrats and Republicans when it comes to presenting policy solutions, but between Republican responsibilities and Republican intentions – they’re a post-policy party with an aversion to governing, which is a problem for a party that has been given broad authority by voters to shape policy and govern.
It’s all painfully obvious, but just as importantly, it’s playing out in real time. This week, for example, a governing party with a policy agenda would respond to White House executive actions by weighing legislation on immigration. The Republican Party, in contrast, is deciding whether to shut down the government until the White House makes the GOP feel better. If that falls short, Republicans might weigh impeachment – and perhaps publish some colorful tweets.
Ezra added, “Even if you think he’s going too far, he at least wants to solve the problem. Republicans don’t seem to want to do anything except stop Obama from solving the problem.”
The GOP wants to present itself as the grown-up party. Republicans see themselves the serious ones who can be trusted to wield power responsibly, unlike those wacky and reckless liberals.
It’d be a less laughable pitch if someone, anyone at all, could identify what the party’s position on immigration policy is.
By: Steve Benen, The Maddow Blog, November 21, 2014
“Doing What They Do Best”: House Republicans Just Passed A Bill Forbidding Scientists From Advising The EPA On Their Own Research
Congressional climate wars were dominated Tuesday by the U.S. Senate, which spent the day debating, and ultimately failing to pass, a bill approving the construction of the Keystone XL pipeline. While all that was happening, and largely unnoticed, the House was busy doing what it does best: attacking science.
H.R. 1422, which passed 229-191, would shake up the EPA’s Scientific Advisory Board, placing restrictions on those pesky scientists and creating room for experts with overt financial ties to the industries affected by EPA regulations.
The bill is being framed as a play for transparency: Rep. Michael Burgess, R-Texas, argued that the board’s current structure is problematic because it “excludes industry experts, but not officials for environmental advocacy groups.” The inclusion of industry experts, he said, would right this injustice.
But the White House, which threatened to veto the bill, said it would “negatively affect the appointment of experts and would weaken the scientific independence and integrity of the SAB.”
In what might be the most ridiculous aspect of the whole thing, the bill forbids scientific experts from participating in “advisory activities” that either directly or indirectly involve their own work. In case that wasn’t clear: experts would be forbidden from sharing their expertise in their own research — the bizarre assumption, apparently, being that having conducted peer-reviewed studies on a topic would constitute a conflict of interest. “In other words,” wrote Union of Concerned Scientists director Andrew A. Rosenberg in an editorial for RollCall, “academic scientists who know the most about a subject can’t weigh in, but experts paid by corporations who want to block regulations can.”
Speaking on the House floor Tuesday, Rep. Jim McGovern, D-Mass., summed up what was going on: “I get it, you don’t like science,” he told bill sponsor Rep. Chris Stewart, R-Utah. “And you don’t like science that interferes with the interests of your corporate clients. But we need science to protect public health and the environment.”
The House, alas, is staying the course, voting this week on two other bills aimed at impeding the EPA, including one that prevents the agency from relying on what it calls “secret science” in crafting its regulations — but which in reality, opponents argue, would effectively block the EPA from adopting any new rules to protect public health. The trio, wrote Rep. Eddie Bernice Johnson, D-Texas, in an editorial for the Hill, represents “the culmination of one of the most anti-science and anti-health campaigns I’ve witnessed in my 22 years as a member of Congress.”
The White House has threatened to veto all three.
By: Lindsay Abrams, Salon, November 19, 2014
“What The Keystone Vote Tells Us About The Democratic Party”: Republicans Succeeding In Defining What It Means To Be A Liberal
The bill to authorize construction of the Keystone pipeline failed to overcome a filibuster in the Senate last night by a single vote. Every Republican voted in favor, since support for the idea of sending Canadian oil to American refineries so it can be processed for sale overseas has become a core value of conservatism. But they were joined by 14 Democrats. And if we look at who those Democrats are, we can learn quite a bit about the state of their party.
Five of those Democrats are red-staters who discovered this year that “distancing” yourself from Barack Obama isn’t enough to win re-election in a year of extremely low turnout. The first is Mary Landrieu, on whose behalf this entire exercise was mounted, on the absurd theory that Louisiana voters will turn out in droves for her runoff in December once they learn how much she loves oil, a fact of which they were supposedly unaware before now. Then we have Mark Begich of Alaska, Kay Hagan of North Carolina, Mark Pryor of Arkansas, and John Walsh of Montana. The first three lost their seats, and Walsh would have been ousted by voters had he not resigned over a plagiarism scandal.
The next group of Democrats are also from red states: Heidi Heitkamp of South Dakota, John Tester of Montana, Joe Manchin of West Virginia, Joe Donnelly of Indiana, and Claire McCaskill of Missouri. Through whatever combination of electoral fear and genuine conviction, these are among the senators who disagree with their colleagues most often. McCaskill is a particularly notable case; lately she has been moving to the right in visible ways, including proclaiming her opposition to Harry Reid remaining leader of the Democrats in the Senate and criticizing President Obama’s proposed actions on immigration. Rumor has it that she’s preparing to run for governor, which could help explain why.
The final group of Democrats who voted in favor of the pipeline may have each had their own reasons, but none could have imagined that voting against the pipeline would be a huge political liability. These were Michael Bennet of Colorado, Robert Casey of Pennsylvania, Mark Warner of Virginia, and Tom Carper of Delaware.
So what does this tell us? To a great degree it suggests that Republicans are still succeeding in defining what it means to be a liberal, striking fear into the hearts of any Democrat who wants to win in a red state. Republicans haven’t actually spent too much time arguing the environmental concerns over Keystone, other than to dismiss them out of hand. Instead, they’ve touted the pipeline as a jobs boon that would boost the entire American economy, a claim no sane person believes.
But red-state Democrats still live their lives in a state of perpetual terror that someone might call them a liberal (the only red-state Democrats who voted No were Tim Johnson of South Dakota and Jay Rockefeller of West Virginia, both of whom are retiring).
If these votes don’t change, when Republicans bring the pipeline up again in the new Congress, it will have enough votes to overcome a filibuster — but still fall short of the 67 that would be needed to override a presidential veto. And the Democrats who supported the pipeline will find that it really didn’t help them.
Their red state colleagues who lost their elections have already found out that high-profile breaks with their party don’t keep you politically safe. And indeed, those red-state losses have made the Democratic caucus in the Senate more liberal, and it’s possible that in 2016 the number of red state Democrats will decline even further (even if Democrats gain seats overall). So even if there is still the possibility of Dem divisions on some issues, the fracturing off of red state Dems could matter less and less over time, making the future of Democrats in Congress one of more, not less, unity.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, November 19, 2014
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