“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
“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
“When Will They Ever Learn?”: Republicans Finally File Lawsuit Against Obama – And Stand To Gain Almost Nothing
Back in June, House Republicans announced, with deep regret yet great fanfare, that they were going to sue Barack Obama over his tyrannical usurpation of power. The suit was never actually filed; two lawyers the House had hired ended up quitting, and it looked as if it would fade away.
Then this week Republicans announced that they had found another lawyer to take the case, George Washington University law professor Jonathan Turley, who says he’s a liberal but has become an intense critic of the Obama administration. Just four days later, the lawsuit has finally been filed:
House Republicans filed a long-threatened lawsuit Friday against the Obama administration over unilateral actions on the health care law that they say are abuses of the president’s executive authority.
The lawsuit — filed against the secretaries of the Health and Human Services and Treasury Departments — focuses on two crucial aspects of the way the administration has put the Affordable Care Act into effect.
The suit accuses the Obama administration of unlawfully postponing a requirement that larger employers offer health coverage to their full-time employees or pay penalties. (Larger companies are defined as those with 50 or more employees.)
In July 2013, the administration deferred that requirement until 2015. Seven months later,the administration announced a further delay, until 2016, for employers with 50 to 99 employees.
The suit also challenges what it says is President Obama‘s unlawful giveaway of roughly $175 billion to insurance companies under the law. According to the Congressional Budget Office, the administration will pay that amount to the companies over the next 10 years, though the funds have not been appropriated by Congress. The lawsuit argues that it is an unlawful transfer of funds.
Call me cynical, but I can’t help but think that the newfound urgency to move ahead with the suit has something to do with President Obama’s immigration order. If conservative Republicans aren’t satisfied with whatever confrontation their leaders manage to create with Obama over immigration, John Boehner can say, “Don’t forget, we’re suing him!”
But what do Republicans get if they win this suit? Not much more than a symbolic victory. The actual complaints in the suit were always strange — they’re suing Obama for delaying the employer mandate, a provision they despise. If they won, he’d be forced to speed up implementation of the mandate, even as Republicans are pressing to eliminate it altogether. And by the time the suit winds its way through the courts, the issue will probably be moot. The mandate for employers with over 100 workers goes into effect in January (though they are only required to cover 70 percent of their employees, and almost all companies of that size already provided coverage even before the law was passed). And the mandate for the mid-size companies goes into effect in a year. By the time the case is heard by a high court, the remedy it’s seeking will probably have already taken place.
As for the other of the suit’s complaints, on cost-sharing subsidies, if Republicans are successful in killing them it would mean that poor people would have to pay more in copays and deductibles. But unlike the subsidies in three dozen states that are at issue in the King v. Burwell lawsuit, which the Supreme Court recently agreed to hear, this provision isn’t critical to the law’s basic functioning. So apart from the satisfaction some Republicans might receive from making life harder for the working poor, even if they win this lawsuit they won’t have dealt the ACA a serious blow.
Legal experts who have looked at this suit haven’t found much merit in it, particularly on the claim about the employer mandate. Federal agencies frequently delay the implementation of far-reaching regulations while practical problems are worked out. But even if they prevail, all Republicans stand to gain is the ability to say that they beat Barack Obama in court. Which may be more than nothing, but it isn’t much more than that.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, November 21, 2014
“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 presidents—Ronald Reagan and George H.W. Bush—had 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 discretion—the 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 priorities—or, in Frum’s words, further a congressional purpose—it 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 priorities—as I believe Obama is—his 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 apart—which 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
“When Government Succeeds”: Surrounded By Examples Of Government Success, Which Republicans Don’t Want You To Notice
The great American Ebola freakout of 2014 seems to be over. The disease is still ravaging Africa, and as with any epidemic, there’s always a risk of a renewed outbreak. But there haven’t been any new U.S. cases for a while, and popular anxiety is fading fast.
Before we move on, however, let’s try to learn something from the panic.
When the freakout was at its peak, Ebola wasn’t just a disease — it was a political metaphor. It was, specifically, held up by America’s right wing as a symbol of government failure. The usual suspects claimed that the Obama administration was falling down on the job, but more than that, they insisted that conventional policy was incapable of dealing with the situation. Leading Republicans suggested ignoring everything we know about disease control and resorting to extreme measures like travel bans, while mocking claims that health officials knew what they were doing.
Guess what: Those officials actually did know what they were doing. The real lesson of the Ebola story is that sometimes public policy is succeeding even while partisans are screaming about failure. And it’s not the only recent story along those lines.
Here’s another: Remember Solyndra? It was a renewable-energy firm that borrowed money using Department of Energy guarantees, then went bust, costing the Treasury $528 million. And conservatives have pounded on that loss relentlessly, turning it into a symbol of what they claim is rampant crony capitalism and a huge waste of taxpayer money.
Defenders of the energy program tried in vain to point out that anyone who makes a lot of investments, whether it’s the government or a private venture capitalist, is going to see some of those investments go bad. For example, Warren Buffett is an investing legend, with good reason — but even he has had his share of lemons, like the $873 million loss he announced earlier this year on his investment in a Texas energy company. Yes, that’s half again as big as the federal loss on Solyndra.
The question is not whether the Department of Energy has made some bad loans — if it hasn’t, it’s not taking enough risks. It’s whether it has a pattern of bad loans. And the answer, it turns out, is no. Last week the department revealed that the program that included Solyndra is, in fact, on track to return profits of $5 billion or more.
Then there’s health reform. As usual, much of the national dialogue over the Affordable Care Act is being dominated by fake scandals drummed up by the enemies of reform. But if you look at the actual results so far, they’re remarkably good. The number of Americans without health insurance has dropped sharply, with around 10 million of the previously uninsured now covered; the program’s costs remain below expectations, with average premium rises for next year well below historical rates of increase; and a new Gallup survey finds that the newly insured are very satisfied with their coverage. By any normal standards, this is a dramatic example of policy success, verging on policy triumph.
One last item: Remember all the mockery of Obama administration assertions that budget deficits, which soared during the financial crisis, would come down as the economy recovered? Surely the exploding costs of Obamacare, combined with a stimulus program that would become a perpetual boondoggle, would lead to vast amounts of red ink, right? Well, no — the deficit has indeed come down rapidly, and as a share of G.D.P. it’s back down to pre-crisis levels.
The moral of these stories is not that the government is always right and always succeeds. Of course there are bad decisions and bad programs. But modern American political discourse is dominated by cheap cynicism about public policy, a free-floating contempt for any and all efforts to improve our lives. And this cheap cynicism is completely unjustified. It’s true that government-hating politicians can sometimes turn their predictions of failure into self-fulfilling prophecies, but when leaders want to make government work, they can.
And let’s be clear: The government policies we’re talking about here are hugely important. We need serious public health policy, not fear-mongering, to contain infectious disease. We need government action to promote renewable energy and fight climate change. Government programs are the only realistic answer for tens of millions of Americans who would otherwise be denied essential health care.
Conservatives want you to believe that while the goals of public programs on health, energy and more may be laudable, experience shows that such programs are doomed to failure. Don’t believe them. Yes, sometimes government officials, being human, get things wrong. But we’re actually surrounded by examples of government success, which they don’t want you to notice.
By: Paul Krugman, Op-Ed Columnist, The New York Times, November 16, 2014
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