“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
“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
“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
“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
“Get A Grip”: GOP Senator Warns Of ‘Anarchy’ And ‘Violence’
Former Republican National Committee Chairman Michael Steele appeared on msnbc yesterday, and when host Alex Wagner asked what kind of advice he’d give his party’s leaders in Congress, Steele offered some sound advice. “The first would be, ‘Get a grip,’” he said.
Steele’s comments came to mind after reading this report published last night by USA Today.
Oklahoma Sen. Tom Coburn warns there could be not only a political firestorm but acts of civil disobedience and even violence in reaction to President Obama’s executive order on immigration Thursday.
“The country’s going to go nuts, because they’re going to see it as a move outside the authority of the president, and it’s going to be a very serious situation,” Coburn said on Capital Download. “You’re going to see – hopefully not – but you could see instances of anarchy. … You could see violence.”
The far-right senator went on to say, “Here’s how people think: Well, if the law doesn’t apply to the president … then why should it apply to me?”
It’s hard to know what to make of such an odd perspective. If Coburn is correct, why weren’t there similar outbursts of anarchy and violence when Presidents Reagan and Bush took very similar executive actions? If the masses are so deeply concerned about separation of powers and the often-ambiguous lines surrounding executive authority, wouldn’t we have seen instances of pandemonium before?
As a practical matter, I’m not even sure how this would work. The Obama administration has limited resources, so it appears likely to prioritize deportations for criminals who entered the country illegally. So, in Coburn’s vision, anti-immigrant activists will become violent, perhaps literally rioting in the street, until more unobtrusive families are broken up?
Brian Beutler reminded Republicans overnight that “just because right-wingers are blind with rage doesn’t mean Obama’s immigration action is illegal.”
It turns out that the laws on the books actually don’t say what you might think they say. Other presidents have discovered this, too. And since nobody wants to write a “maybe I should’ve asked some lawyers first” mea culpa column, they shifted the debate from the terrain of laws to the murkier terrain of political precedent, norms, and procedure. […]
What’s new is that Republicans have perfected a strategy of rejectionism with the help of a media amplification infrastructure—Fox News, Drudge, Limbaugh—that the left hasn’t adopted and doesn’t yet enjoy. Rather than simply fight to reverse the policy in Congress and on the campaign trail—as liberals do when Republicans weaken environmental enforcement—the right can also now scream “Caesar!” without reference to any objective standards, and get a full hearing.
“Get a grip,” indeed.
By: Steve Benen, The Maddow Blog, November 20, 2014
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