“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
“Republicans Will Now Taste Their Bitter Harvest”: The “Party Of No” Has No Agreement On What Is Yes
In the early 3rd century B.C., after King Pyrrhus of Epirus again took brutal casualties in defeating the Romans, he told one person who offered congratulations, “If we are victorious in one more battle with the Romans, we shall be utterly ruined.” In his more sober moments, Mitch McConnell (R-Ky.), about to achieve his lifelong ambition of becoming Senate majority leader, may wonder whether he, too, has achieved a pyrrhic victory.
Republicans are still crowing about the sweeping victories in 2014 that give them control of both houses of Congress. They will set the agenda, deciding what gets considered, investigated and voted on. Their ideas will drive the debate.
But Republicans have no mandate because they offered no agenda. Republicans reaped the rewards of McConnell’s scorched-earth strategy, obstructing President Obama relentlessly, helping to create the failure that voters would pin on the party in power. But the collateral damage is that the “party of ‘no’ ” has no agreement on what is yes. Instead of using the years in the wilderness to develop new ideas and a clear vision, Republicans have used them only to sharpen their tongues, grow their claws and practice their backhands.
Republicans paid no penalty for obstructing every measure that might have given the recovery more juice, blocking even the infrastructure spending that has been a bipartisan response in every downturn. They paid no penalty for shutting down the government and forcing mindless austerity that cost jobs. They paid no penalty for their perfervid hysteria on foreign policy issues – screeching about phantom terrors of pregnant immigrants helping Islamic State terrorists and Ebola victims slip in the country to kill us here at home. They never needed to fill in the magic asterisks in Rep. Paul Ryan’s risible budgets, enabling him to deny the damage to Medicare, education, food stamps and the most vulnerable that his plans would require.
The result is that McConnell leads into a power a party truly unfit and unready to govern. Indeed, the wingnuts at its base want it only to dismantle, not to govern. As Terrance Heath reported, the ever-apoplectic Rush Limbaugh announced that Republicans have a mandate to “stop Barack Obama” and “were not elected to govern.” Fox News host Megyn Kelly fantasized that Obama would “offend” Republicans into impeaching him; Phyllis Schlafly argued the first priority should be blocking all Obama’s judicial nominees. Sen. Ted Cruz (R-Tex.) pledged once more to repeal Obamacare. The dyspeptic Sen. John McCain (R-Ariz.) will use his chairmanship of the Armed Services Committee to demand more “boots on the ground” in Iraq and Syria, harsher sanctions to undermine negotiations with Iran and more macho posturing over Ukraine. Sen. Jim Inhofe (R-Okla.) will use his likely chairmanship of the Environment and Public Works Committee to deny the existence of catastrophic climate change even while allocating billions for cleanup in the wake of floods, droughts and storms to come.
McConnell portrays Republicans as ready to embrace a conservative Chamber of Commerce agenda, repaying the big money that helped bring them victory. This would include giving multinationals a massive tax break on money that they stashed abroad to avoid taxes, passing fast-track trade authority, pushing ahead the Keystone XL pipeline, weakening the Consumer Financial Protection Bureau and repealing the tax on medical devices, first of the salami-style effort to slice up Obamacare.
But the zealots in the House and Senate expect more fire and less compromise. They want Obamacare repealed. They want the scorched-earth obstruction to continue: Obama’s nominations blocked, scandals real and delusional investigated, Dodd-Frank financial regulation reversed and taxes and domestic spending slashed.
It isn’t at all apparent that McConnell and Boehner can corral Republican majorities for any measures that Obama might accept. But even if McConnell could put the Chamber of Commerce’s bills on the president’s desk, one thing is apparent: None of these will do anything to address the profound crises the country faces. There is no relief for the sinking middle class and impoverished low-wage workers, no strategy for addressing climate change, no response to the destructive excesses of banks too big to fail.
McConnell won his majority by brilliantly waging a partisan, dishonest, unrelenting policy of obstruction. But now, the absence of any ideas or of any clue will be exposed. And next time, when voters sensibly want to throw the bums out, they may have a far clearer view of just who the bums are.
By: Katrina vanden Heuvel, The Washington Post, November 11, 2014
“The Fable Of Rand Paul”: Less Of A Thoroughbred With Stamina Than A One-Adjective Pony
“The most interesting man in politics” is what Politico Magazine crowned Rand Paul in September, when it placed him at the top of a list of 50 people to keep an eye on. And Time magazine used those exact six words, in that exact order, next to a photograph of Paul on its cover last month.
The adjective bears notice. Interesting. Not powerful. Not popular. Not even influential.
They’re saying that he’s a great character.
And that’s not the same as a great candidate.
You could easily lose sight of that, given the bonanza of media coverage that he has received, much of it over the past week and a half, as journalists eagerly slough off the midterms, exuberantly handicap the coming presidential race and no longer digress to apologize for getting into the game too soon. The game’s on, folks. From here forward, it’s all 2016 all the time.
And in order to keep the story varied and vivid, those of us chronicling it will insist on stocking it with players who break the rules and the mold, who present the possibility of twists and surprises, whose surnames aren’t Bush or Clinton, whose faces are somewhat fresh.
Cue Rand Paul. He gives good narrative.
He’s an ophthalmologist who never held office before his successful 2010 Senate race. He’s got that sporadically kooky dad. He’s a dove in a party aflutter with hawks. And he’s a gleeful nuisance, which he demonstrated when he commandeered the Senate floor for nearly 13 hours and filled Ted Cruz with filibuster envy.
All of that has made him a media sensation. But none of it would necessarily serve a quest for the Republican presidential nomination. At this point Paul is as much a political fable as a political reality, and his supposed strengths — a libertarian streak that appeals to some young people, an apparent comfort with reaching out to minorities and expanding the Republican base — pale beside his weaknesses. They’re many.
And they’re potentially ruinous.
The dovish statements and reputation are no small hurdle. No Republican nominee in recent decades has had a perspective on foreign policy and military intervention quite like Paul’s, and there’s little evidence that the party’s establishment or a majority of its voters would endorse it.
Nor is there any compelling sign that the party is moving in his direction. In the wake of Russia’s provocations and Islamic militants’ butchery, Americans just elected a raft of new Republican senators — including the military veterans Tom Cotton in Arkansas, Joni Ernst in Iowa and Dan Sullivan in Alaska — who are more aligned with John McCain’s worldview than with Paul’s, and that raises serious questions about the currency of his ideas and his ability to promote them. He gets attention. But does he have any real sway?
He himself seems to doubt some of his positions and has managed in his four short years in the Senate to flip and flop enough to give opponents a storehouse of ammunition.
Adopting a stark, absolutist stance, he initially said that he opposed all foreign aid. Then he carved out an exception for Israel.
First he expressed grave skepticism about taking on the Islamic State. Then he blasted President Obama for not taking it on forcefully enough.
His language about Russia went from pacific to truculent. His distaste for Medicare went from robust to tentative.
These adjustments suggest not just political calculation but, in some instances, amateurism. He’s a work in remarkably clumsy progress, with glimmers of recklessness and arrogance, and he often seems woefully unprepared for the national stage.
The most striking example was his assertion in an interview with Olivia Nuzzi of The Daily Beast in September that John McCain had met and been photographed with members of the Islamic State. Paul was parroting a patently suspicious story that had pinged around the Internet, and the problem wasn’t simply that he accepted it at face value. He failed to notice that it had been thoroughly debunked, including in The Times.
At best he looked foolish. At worst he looked like someone “too easily captivated by the kinds of outlandish conspiracy theories that excite many of his and his father’s supporters,” as Mark Salter, a longtime McCain aide, wrote on the Real Clear Politics website.
Paul can be prickly and defensive to an inappropriate, counterproductive degree, as he was when dealing with accusations last year that he had used plagiarized material in speeches, an opinion article and a book.
In a story in The Times by Jim Rutenberg and Ashley Parker, Paul conceded “mistakes” of inadequate attribution. But he hardly sounded contrite. He lashed out at the people who had exposed the problem, grousing, “This is coming from haters.” And in promising to have his aides use footnotes in future materials, he said, “What we are going to do from here forward, if it will make people leave me the hell alone, is we’re going to do them like college papers.”
People are not going to leave him the hell alone, not when he’s being tagged in some quarters as the Republican front-runner, and his struggle to make peace with that is another liability.
But why the front-runner designation in the first place?
In an ABC News/Washington Post poll last month, 21 percent of voters who lean Republican named Mitt Romney as their preferred candidate in a primary or caucus, while 11 percent named Jeb Bush, 9 percent Mike Huckabee and 9 percent Paul. Two other national polls don’t show any growth in support for Paul over the course of 2014, despite all the coverage of him.
In one survey of Iowa Republicans in October, he trailed not only Huckabee and Paul Ryan but also Ben Carson, the neurosurgeon. And in a survey of New Hampshire Republicans, he trailed not only Huckabee and Bush but also Chris Christie.
What really distinguishes him, apart from some contrarian positions that are red meat for ravenous journalists, is that he’s been so obvious and unabashed about his potential interest in the presidency. He’s taken more pains than perhaps anyone other than Ted Cruz to get publicity. He’s had less competition for the Republican spotlight than he’ll have in the months to come.
And that’s given him a stature disproportionate to his likely fate. It has made him, in the words of a Washington Post headline last June, “the most interesting man in the (political) world.” There it is again, that one overused superlative. Makes you wonder if he’s less a thoroughbred with stamina than a one-adjective pony.
By: Frank Bruni, Op-Ed Columnist, The New York Times, November 15, 2014
“I’m Not One Of Them, I’m You”: How Rand Paul Is Playing The GOP Base, And What It Means For 2016
Anyone who remembers the 2012 GOP presidential primaries knows that the 2016 contest will involve a lot of arguing about who’s the most conservative candidate. Any contender who has strayed from party orthodoxy on anything will have to undergo a sustained campaign of grovelling and humiliation to prove to Tea Partiers, religious conservatives, and everybody else that he will be faithful and true forevermore. This process leaves its participants battered and bruised, diminished in the eyes of general election voters.
But what if placating the right isn’t as hard as it appears? That question is right now being contemplated by Rand Paul, who is running for the White House harder than anybody.
Paul has now given a speech outlining his foreign policy vision (which every candidate is supposed to have). The speech shows just how Paul is navigating the tension between the two competing incentives that will define his candidacy. On one hand, he needs to reassure Republican voters that he’s conservative enough for them, but on the other hand, he also very much wants to be the “different kind of Republican” who will continue to receive glowing media coverage and prove appealing to moderate general election voters.
If you took out the five Reagan references and changed some words and phrases here and there, the speech Paul gave could have been delivered by Barack Obama. The difference between a Republican and a Democrat, apparently, is that the Republican says that we should always be prepared for war, but war should be a last resort, while the Democrat says that war should be a last resort, but we should always be prepared for war. Paul also added the controversial ideas that American values lead the world, and we’re stronger abroad when our economy is stronger at home. And also, Reagan, Reagan, Reagan.
The interesting thing is that, despite the similarity of Paul’s ideas to those of Obama, Paul’s speech showed that it probably isn’t all that hard to give GOP voters what they want on foreign policy. All it takes is a little dexterity to push the right buttons, as Paul does in this passage:
Although I support the call for defeating and destroying ISIS, I doubt that a decisive victory is possible in the short term, even with the participation of the Kurds, the Iraqi government, and other moderate Arab states.
In the end, only the people of the region can destroy ISIS. In the end, the long war will end only when civilized Islam steps up to defeat this barbaric aberration.
He takes a policy position many Republicans will disagree with, but leavens it with the mention of “the long war” and “civilized Islam,” giving a nod to the clash-of-civilizations sentiment so common on the right. Mission accomplished.
This is a marked contrast to the domestic realm, where there are many specific positions that are beyond negotiation. You have to support tax cuts, oppose Roe v. Wade, proclaim your hatred of Obamacare, want to Drill Baby Drill, and so on. Paul has stepped outside of conservative orthodoxy on a few domestic issues, such as with his criticism of mass incarceration. But that’s easy to do now, since crime rates have plummeted since then, the issue has receded and base conservatives won’t be angry with him for taking a contrary position. And at any rate, for some time, Paul has been slowly stepping away from the libertarian ideas on domestic issues that GOP voters would find truly objectionable, like legalizing drugs.
On foreign policy, Paul can probably have it both ways: he can say to the media and non-Republicans, “I’m different, because I don’t think we should arm Syrian rebels,” and he can say to Republicans, “I’m not different, because like you, I think Obama is screwing everything up.” It takes a little thought and planning, but it’s far from impossible.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, October 24, 2014
“The Elephant In The Room With Leon Panetta”: A Political Actor Working For Someone Else’s Electoral Gain?
In his widely read blog of Beltway goings-on, Chris Cillizza made the following fairly obvious point about former defense Ssecretary Leon Panetta’s Obama-bashing media tour:
What’s fascinating about this gripe with Obama is how much it plays into a) the argument that Hillary Clinton made against him in the 2008 presidential primary and b) the argument Hillary Clinton will likely make when (sorry, if) she runs for president in 2016. That argument, in short: I have been there and done that. I know what it takes to move the levers of power in Washington—and I am willing to do whatever it takes to make them move.
In addition, Panetta’s criticisms mainly involve Obama’s reluctance to use military force—also a fault line between Clinton and Obama, particularly on the matter of arming the Syrian rebels.
But the Beltway press shouldn’t be afraid to explicitly ask if Panetta is serving as an agent of Clinton’s official-but-not-yet-official presidential campaign. It’s not just that his criticisms dovetail with Clinton’s and are no doubt politically convenient for her as she attempts to draw a difference with the Obama administration—there are explicit ties to the shadow Clinton campaign that should make this question fair game.
Panetta has taken up residence at Beacon Global Strategies, where he is a senior counselor. He has deep ties to the group’s leaders; Jeremy Bash, Beacon’s founder and managing director, was Panetta’s chief of staff at both the CIA and the Pentagon. Another founder and managing director is Philippe Reines—one of Hillary’s closest allies and someone widely understood to still be managing her public profile.
Reines helped found Beacon after years spent with Hillary. He joined her Senate office in 2002 and later moved to the State Department when she became secretary. He is Clinton’s “chief personal defender,” in the words of New York magazine, who reported in a profile earlier this year that in addition to running Beacon, Reines’s “second full-time job” is working for Hillary. When she decides to run, Reines will be part of the campaign. In many ways, he already is.
So Panetta’s very close ties to Clinton’s non-campaign campaign should naturally raise the question if he, too, is an explicit part of it.
Note that Panetta first made a splash with his tough criticisms of Obama during a September 21 interview with 60 Minutes, in which he blasted the president for not arming the Syrian opposition sooner. “I think that would’ve helped,” he said. “And I think in part, we pay the price for not doing that in what we see happening with ISIS.” The “paying the price” line made headlines around the country the next day.
That very same Sunday, Bill Clinton appeared on CNN—and made the exact same point, and made it clear that Panetta and his wife were on the same page. “I supported two years ago the proposal that Hillary and Secretary Panetta and then–CIA director General Petraeus made to give more robust armed support to the Syrians,” he told Fareed Zakaria.
With Reines managing Hillary’s public image, and Panetta and Bill Clinton making the same point on the same day, the question of coordination is unavoidable.
That’s not to say Panetta’s criticisms shouldn’t be considered on their merits, nor that there’s anything wrong with this coordination. But it’s crucial context in which to understand his position—that perhaps he’s not just a reluctant critic trying to call out policy failures, but also a political actor working for someone else’s electoral gain.
By: George Zornick, The Nation, October 9, 2014
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