“Hardly Unprecedented”: On Immigration, Law Is On Obama’s Side
The legal controversy surrounding the Obama administration’s immigration enforcement policies will soon come to a head when the Supreme Court justices hear the case United States v. Texas on Monday. Texas claims that the president’s executive decisions lack legal sanction by Congress and have injured the state.
But whether or not you like President Obama’s actions, he has operated under longstanding provisions of law that give the executive branch discretion in enforcement. This presidential prerogative has been recognized explicitly by the Supreme Court. Moreover, the nature of immigration enforcement and the resources (or lack thereof) appropriated by Congress necessitate exactly the type of choices that the president has made.
Congress has repeatedly granted the executive branch broad power in enforcing immigration laws. The 2002 law creating the Department of Homeland Security explicitly said the executive should set “national immigration enforcement policies and priorities.” The Supreme Court has recognized the leeway Congress gives the executive branch in deportations. In a 2012 majority opinion written by Justice Anthony M. Kennedy and joined by Chief Justice John G. Roberts Jr., the court noted that “a principal feature of the removal system is the broad discretion exercised by immigration officials,” including the decision “whether it makes sense to pursue removal at all.”
Setting enforcement priorities is vital to the effectiveness of our immigration laws. Congress can’t anticipate every situation. This is why the Supreme Court recognized in 1950 that immigration law is an area where “flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.”
The immense moral and legal consequences of a deportation campaign targeting up to 11 million undocumented immigrants are obvious. Even Americans whose frustration has overcome their compassion and led them to support the harshest immigration enforcement would be likely to reconsider if they actually saw such an operation in action.
A huge roundup like that would require an extraordinary expansion of federal law enforcement capabilities and resulting intrusions into American society. But in reality, there is no prospect for such a campaign because Congress has not made available more than a small fraction of the necessary money and manpower.
This is why, by its nature, immigration enforcement requires executive discretion.
The administration’s initiatives allow Homeland Security officials to forgo deportation, on a case-by-case basis, of undocumented residents who came here as children before June 15, 2007, and of certain undocumented parents of children who are American citizens or legal residents. Both are in keeping with similar programs put in place by both Republican and Democratic presidents dating from the Eisenhower administration.
In 1990, for example, under President George H.W. Bush, the immigration service, relying in part on authority dating from the Reagan administration, offered extended voluntary departure and work authorization to the spouses and children of aliens who had previously been granted legal status.
President Obama’s actions, therefore, are hardly unprecedented. There are two major differences. First, he gave speeches advocating for explicit programs with names, rather than relying on subtler agency direction.
Second, immigration policy has been caught up in today’s hyper-partisanship, where a strident anti-immigration tide within the Republican Party overwhelms all bipartisan compromise. All 26 state officials who have challenged the administration’s executive actions in the Supreme Court case are Republicans, and last month the G.O.P.-led House of Representatives voted to file an amicus brief on behalf of the entire House.
From these howls of outrage, you wouldn’t know that the Obama administration has vastly exceeded the deportations under President George W. Bush. And Mr. Bush vastly exceeded those of President Clinton. President Obama’s directives to focus enforcement efforts on those who have committed crimes in the United States and recent border crossers are a rational executive prioritization, given the resources and the realities.
These facts undercut Texas’s argument that it is unduly burdened by the president’s decisions. With deportations aimed at criminals and new border crossers, we would seem close to an optimal state-friendly federal immigration policy.
When the president took his executive action on immigration, he was not flouting the will of Congress; rather, he was using the discretion Congress gave him to fulfill his constitutional duty to “take Care that the Laws be faithfully executed.”
By: Richard G. Lugar, Represented Indiana in the United States Senate from 1977-2013, President of the Lugar Center; Op-Ed Contributor, The New York Times, April 18, 2016
“Trump’s ‘Operation Wetback’ Delusion”: No, Donald, Most Americans Want Something Very Simple; It’s Called Immigration Reform
I don’t know about you, but I think it says something interesting that in the eight presidential campaigns I’ve covered and written about, this is the first time I’ve seen the need to weave The Daily Stormer into my normal news diet.
But how could one not, with Donald Trump still walking among us? The neo-Nazi Stormer has loved The Donald ever since the famous Mexican rapists speech, so when Trump invoked Dwight Eisenhower last night as the last president who understood how to get those people out of the country, I knew immediately which trusted news source I wanted to go to first.
James Kirkpatrick’s write-up did not disappoint. He opened his dispatch with the complaint (legitimate, it must be said) that Marco Rubio has now walked off the stage of four debates without having been asked to utter a word about his immigration reform support of 2012. When he turned to Trump, the Stormer correspondent first sniffed about the candidate’s “usual lack of polish.”
There followed a string of Trump criticisms, but then came the bolt of thunder: “But none of that matters as Trump stood strong even while being aggressively pressed on immigration… This represents a milestone in the immigration debate. At a stroke, Trump demolished the argument that deporting illegals is not feasible. The only question now is whether we have the will to do it.”
By now, you’ve read all about how Trump was referring, albeit not by name, to Operation Wetback, the program undertaken by the Eisenhower administration in conjunction with the Mexican government to send workers who’d come to America illegally back to the home country. Mexico wanted them back because it was then an under-industrialized country that needed all of its able-bodied men.
This isn’t the first time Trump has mentioned Operation Wetback without mentioning it. He did it on 60 Minutes back in September. At the time, the pro-immigration reform group America’s Voice put out a white paper explaining what Operation Wetback was and what bringing it back would mean. The long and short of it was that we quite simply rounded people up and sent them back at gunpoint. It was ugly business. In the summer of 1955, hundreds of Mexicans we’d sent back got left in the high desert to die.
Would we really do something like that today? No, we wouldn’t. Those were different times. Eisenhower’s attorney general was a fellow named Herbert Brownell. A Nebraska native who went East to Yale Law and practiced at Lord Day & Lord in New York, Brownell was a cultivated man and, as far as I knew until recently, a supporter of civil rights who endorsed Ike’s move to integrate Little Rock’s Central High School. But with respect to the “wetbacks,” Brownell endorsed shooting a few border crossers on site to send a message to the rest of them. I don’t think even Trump’s AG would say something like that.
But the main point isn’t even that we wouldn’t do it today. The main point is that we couldn’t even if we had a president who wanted to. In the 1950s, most of the Mexicans in the United States illegally, in fact virtually all of them, were single males (or maybe married men, but alone) who came here to work. So they were solo players. And they were typically located in only a handful of places—Los Angeles, San Francisco, some other cities, the border area itself.
Today, undocumented immigrants are every kind of person, and they live everywhere. “It’s not like today you’re talking about some easily identifiable group of mostly single men,” Frank Sharry of America’s Voice told me Wednesday. “It’s all kinds of people fully integrated into American life.”
The average time living in the United States among the 11.3 or so million here without papers, says Sharry, is 13 years. They’ve put down roots. One third are homeowners! They’re fathers, mothers, grandparents. And many or even most families involved here are what they call “mixed status”: maybe the husband has a green card, the wife doesn’t, two kids came over the border with them, but two other kids were born here and are citizens. What do you do with these people? The United States of America is going to start breaking up loving families? What I do mean start? We’ve done it. It wasn’t one of our more glorious chapters. It was called slavery.
It’s a practical impossibility. And that’s to say nothing of the mountains of lawsuits that would quickly pile up. Oh, and also public opinion, which strongly supports legalization over deportation. Sharry says the ratio is about four-to-one among the general public, but that even among Republicans, it’s 60 percent for legalization, 20 percent who would prefer deportation but don’t think it’s practical, and the remaining 20 percent who are over in the Trump-Stormer corner.
No, Donald, most Americans want something very simple and straightforward. It’s called immigration reform. With a path to citizenship for people who follow the new rules. That’s what America wants, but that’s what America cannot get, because of the yahoo right wing and because of cowards and milksops like Marco Rubio, who are even worse. At least the yahoos are straightforward in their stupidity and hatred. Rubio, who first tried to ride immigration reform to the White House and is now trying to ride opposition to same to the identical destination, should be made to answer for it. On this, at least, the Stormer correspondent and I agree.
By: Michael Tomasky, The Daily Beast, November 11, 2015
“Absolutely Unpresidential”: The Extremism On Display At The GOP Debate Would Have Horrified Anyone Who’s Actually Been President
I woke up in the middle of the night in a cold sweat after the last Republican debate. I had a vision of President Ronald Reagan sitting in the front row at his library watching the debate. Alongside him were fellow Presidents Harry Truman, Dwight Eisenhower, John Kennedy, Gerald Ford and even Richard Nixon.
Very quickly the blood drained from their faces. They began to fidget, to shift awkwardly in their chairs. They began to look around for the exits. These men who had led our nation, made difficult decisions and participated in politics their entire lives were appalled at what was going on before them.
Sure, they were shocked at the nastiness and vitriol among the candidates – this was way over the top. Sure, they were amazed that the front-runner was one Donald Trump, who belonged on “Entertainment Tonight,” not a presidential debate. Sure, they understood that how the candidates were behaving was counter to everything they knew about getting elected in America.
But my guess is what really frosted these men was that the substance of what most of these candidates were saying was so unreasonable, so off base, so totally devoid of reality, that it was downright scary.
Texas Sen. Ted Cruz, and others, saying they would tear up the Iran agreement on day one of his presidency, thereby ensuring that no foreign leader would trust the U.S. to keep its word in the future. Former CEO Carly Fiorina stating flatly she would not ever talk to Russian President Vladimir Putin. No negotiating, no contact, nada. That would surprise Reagan and the others who always talked to our enemies and kept the lines of communications open – from the Soviet Union to “Red” China.
And how about blanket threats, with Fiorina’s phone call to the “Supreme Leader” of Iran that we will throw out the agreement and “move money around the global financial system.” Trump showed no knowledge of foreign policy and simply said he would hire great advisers – where are they now, the ones he watches on cable TV? And then there was the suggestion that we deport 11 million people because “the good ones will come back.” And, of course, there was the fight about who was the worst CEO or who could attack Planned Parenthood with the most vengeance.
The sheer level of ignorance, lack of preparation and categorical, extreme statements on critical policy matters was astounding. My guess is that these former presidents, had they been present, would have truly wondered what had happened to their country and the quality of the candidates running for the highest office in the land.
By: Peter Fenn, U. S. News and World Report, September 18, 2015
“Iran Nukes? Thank Neocons”: The No-Diplomacy Posture Is Exactly What Has Brought Matters To This Point
I have probably written many times in the past that Republicans hit a new low, but as of this week you can toss all those. This Senate letter is the definite low of all time. I didn’t think these people could shock me, but this one genuinely was shocking in so many ways—not least the dishonor it brings on the United States Senate—that every other nutso thing they’ve done drops down one notch on the charts.
Treason, as the Daily News blared? I don’t know for sure about that. But I know to a certainty that if a group of Democratic senators had done this to a Republican president, Republicans and conservative pundits would be screaming the T-word and demanding the Justice Department investigate the senators.
Imagine if, say, 47 Democratic senators had written an “open letter” (a moral cop-out that permits the senators to say that it wasn’t “really” a communication to Ayatollah Khamenei) to Mikhail Gorbachev in 1986 assuring him any treaty Ronald Reagan signed with him could and quite possibly would be altered or abrogated by them. Or worse still—imagine that 47 Democratic senators had written an open letter to Saddam Hussein in the fall of 2002 reminding him that only Congress could declare war and that most of them would long outlast President Bush, while closing on the breathtakingly cloying note of being happy to have enriched Saddam’s “knowledge of the constitutional system.” There seems to me no doubt whatsoever that some Republican senators and members of Congress would have been baying for Logan Act prosecutions.
Much as part of me might savor it, I don’t think we ought to go there. A far better punishment for these disgraceful intriguers would be for the letter to backfire and increase the likelihood of a deal being struck. And it might well have that effect: If the mullahs genuinely want a deal, then surely a threat like this from the Senate would make them more anxious to pursue one while they can, and then hope that Hillary Clinton, who’s indicated she’d support a deal, becomes the next president and can make it stick.
Let’s hope that’s the effect—but let’s never forget the intent. These Republican senators, says Trita Parsi of the National Iranian American Council, an advocate for a deal, can’t block a settlement; “but they can get the Iranians to think that it’s impossible to trust the United States,” he says. Thus, “the intent of the letter was to show the United States to be untrustworthy.”
It’s pretty amazing that members of the United States Senate would want to do that to their own country—not just in the eyes of Iran, but in the eyes of the five other powers involved in the negotiations. Three are some of our closest allies (Britain, France, and Germany). The other two are the not inconsiderable nations of Russia and China. All five have had negotiators sitting at the table with us and the Iranians for a year and a half. Wonder what they think of this.
It’s a disgrace, but only another in a long history of Republican-conservative disgraces with respect to Iran. Indeed these go back to 1953, when Dwight Eisenhower green-lighted the coup that Harry Truman had blocked. And they extend up to 2003, and the now largely forgotten but suddenly rather timely story of the Bush administration’s rebuff of an Iranian diplomatic overture that could have made the history of the U.S.-Iran relationship a very different one from what it has been.
It was all widely reported then; this Washington Post article provides a good rundown. In sum, it was a point in time when the (Shia) Iranian republic had been cooperating with the United States in tracking down some (Sunni) al Qaeda men; through a Swiss intermediary, Iran passed a letter to the White House feeling the Bush administration out on broad-ranging negotiations—possibly curtailing its nuclear ambitions, cutting back on its support for (or maybe even disarming) Hezbollah, and most strikingly of all, indirectly recognizing Israel’s right to exist—all in exchange for the lifting of American sanctions.
The offer was real. Whether it had Khamenei’s blessing, no one in the West really knows. Still, some elements in the Bush administration wanted to pursue it. But guess who won? As that Post story reports it, “top Bush administration officials, convinced the Iranian government was on the verge of collapse, belittled the initiative.”
We can’t know what might have happened. “But we do know one thing,” Parsi says. “When diplomacy is rejected, as it was under Bush, when the official U.S. policy was for regime change in Tehran, you give the Iranians every incentive to do everything they can to prevent the United States from pursuing regime change.” That means spreading its talons across Iraq, and it chiefly means, of course, pushing ahead full-speed with its nuclear ambitions.
Here’s part of what that rejection of diplomacy has done for us. In 2005, Iran put an offer on the table to the Europeans calling for it to keep 3,000 centrifuges. But that was rejected, because the United States wasn’t willing to talk to Iran. So what did Iran do? While we were refusing to negotiate and rattling the saber, they were building centrifuges to beat the band.
So today, Parsi told me, Iran has about 22,000 centrifuges, of which 9,400 are operational. Any deal is going to let Iran end up with around 6,000 centrifuges. That’s twice the amount it was asking for in 2005, when we could have struck a deal at 3,000. But we weren’t talking to Iran then, because it’s weak to talk to terrorists and because the regime was on the verge of collapse anyway, see?
Our years of resistance to diplomacy, a product of neocon doctrine and pressure, has thus made the situation clearly and tangibly worse. The Obama administration, and the other five powers, are trying to stuff back into the tube the toothpaste that Dick Cheney and his confederates squeezed out. And for its attempt to repair the gaping wound the neocons and their friend Mr. Netanyahu inflicted on the world, the administration is now subject to this poisonous and quasi-treasonous attack that is designed to increase the likelihood of war with Iran (Senator Tom Cotton, the letter’s author, spoke openly at the recent CPAC conference in support of regime change).
I applaud the seven Republican senators who did not sign the letter, even if it is a little like applauding the members of the Manson family who didn’t actually kill anybody. And for those who did sign, eternal shame. The only silver lining is that the right’s track record on Iran suggests strongly that the result will be the opposite of that which they desire.
By: Michael Tomasky, The daily Beast, March 11, 2015
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