“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
“It Isn’t About The Substance At All”: Why Republicans Are So Mad About Obama’s Immigration Order
President Obama is going to detail some executive actions he plans to take on immigration in a speech tonight, and you may have noticed that the debate over this move is almost completely void of discussion of the particulars. Instead, we’re discussing whether Obama is exceeding his powers. That’s an important question to address, but it also frees Republicans (for the moment anyway) of having to visibly argue for things like deporting the parents of kids who are already allowed to stay in the United States.
One thing you’ll notice as you watch coverage of the issue is that Republicans are seriously pissed off at Obama. And not in the faux outrage, pretend umbrage way—they are genuinely, sincerely angry. And while there may be a few here or there whose blood boils at the thought of an undocumented immigrant parent not living in constant terror of immigration authorities, for the vast majority it isn’t about the substance at all. So what is it about? Here’s my attempt at explaining it.
Obama is not showing sufficient deference to their midterm election win. Republicans just won an election, and like any party that wins an election, they feel that the American people validated all of their positions and everything they’d like to do, and rejected those of Democrats. There are reasonable arguments to be made against this belief. For instance, you could point out that since turnout in this election was an abysmal 36 percent and Republicans got a little over 50 percent of the votes for the House, they actually got a thumbs-up from only 19 percent of the electorate, which isn’t exactly “the American people.” Or you could note that if you add up the votes received by all 100 senators in the new GOP majority, the Democrats actually got 5 million more votes. These things may be true, but they don’t reduce the Republicans’ sincere belief that they have the people behind them. Whether they actually expected Obama to put aside his entire agenda because of the election, the fact that he shows no interest in doing so is obviously maddening to them.
Obama is backing them into a political corner. Republicans would frankly prefer not to have to talk about immigration at all, outside election-year pitches to primary voters about broken borders. Their fundamental dilemma is that on the local level, most of them have constituencies that are deeply hostile to immigrants and opposed to comprehensive reform, yet on the national level, the party must make inroads with Hispanic voters to have hopes of winning the White House. A big confrontation over immigration puts their crazy nativists like Steve King on the news and serves to convince those Hispanic voters that the GOP has nothing but contempt for them and people like them. Those crazy people are convinced that a big part of the motivation for Obama’s move is to create new Democratic voters (which it wouldn’t do), while the more sensible ones worry that it will make their task of winning Hispanic votes even harder (which it will do).
This move also seizes the agenda from them, in a way that divides Republicans against themselves. As Lisa Mascaro and Michael Memoli reported in an excellent article in today’s L.A. Times, “Republican leaders who had hoped to focus on corporate tax reform, fast-track trade pacts, repealing the president’s healthcare law and loosening environmental restrictions on coal are instead being dragged into an immigration skirmish that they’ve tried studiously to avoid for most of the last year.”
The only real way for them to stop him is to shut down the government, and they’re also probably mad that he has forced them into that internal and external debate. Not only are they now arguing amongst themselves about it (again), it means they have to put up with a lot of “Are you going to shut down the government?” questions from reporters, which have as their subtext, “Are you going to prove all over again what a bunch of reckless maniacs you are?” Their attempts to argue that if there’s a shutdown it will be Obama’s fault and not theirs will inevitably be rejected by both the press and the public, leading to even more resentment, since they feel as though they’ll be blamed for something that is his fault.
Aggressive Obama is bad Obama. Let’s face it, many if not most Republicans have never considered Barack Obama a legitimate president. This applies not just to Republican voters—49 percent of whom believed that ACORN stole the 2012 election for him, which would have been particularly difficult for the organization to accomplish given that it ceased to exist in 2010—but to its elected officials as well. Although it has calmed down of late, let’s not forget just how many years Obama spent trying to persuade people that he is, in fact, an American, including producing his birth certificate. Republicans have in the past viewed any Democratic president as having suspect legitimacy, but it’s been worse with Obama than prior presidents.
For that reason, Republicans have found even the most mundane exercise of his presidential power to be deeply disturbing. His bold move of hiring people to work on the White House staff was met with horrified cries that he had created “czars” who were wielding despotic and unaccountable power. When he set rules for federal contractors, as every president does, they were aghast. These kinds of things didn’t bother them when Republican presidents did them not only because they agreed with the substance of whatever those presidents were doing, but also because they regarded those presidents’ power as legitimately held. Over time, the narrative of Obama’s “lawlessness” took hold on the right, and ended up being applied to almost any executive branch action they didn’t like. In this case, he actually is approaching the limits of his authority, which makes it all the worse.
Obama is making them feel impotent. This is where all the other pieces come together. Being in the opposition party can be frustrating, because your role is fundamentally not to do things, but to try to stop the president from doing things. That’s an important task, but it isn’t quite as satisfying as remaking the country to suit your vision. Republicans’ greatest fear about this is that Obama will go ahead and do what he wants and they won’t be able to stop him, even though they worked so hard to gain full control of Congress after six long years. They won the election, his approval ratings are low, they firmly believe they’re right, and yet this president they loathe so much is about to just walk all over them anyway. No wonder they’re mad.
By: Paul Waldman, Contributing Editor, The American Prospect, November 20, 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
“Television Media Played Into Republicans’ Hands”: TV News Does A Complete 180 On Ebola Coverage After Midterms
Network news coverage of the Ebola virus abruptly and dramatically fell off following the midterm elections earlier this month, according to a new study by Media Matters.
After reviewing transcripts from Oct. 7 to Nov. 17 in the 5-11 p.m. time slot, Media Matters discovered that evening broadcast and cable news programs aired close to 1,000 segments on Ebola in the four weeks leading up to the elections, and only 49 segments in the two weeks that followed.
“In early October, the GOP developed a plan to make the federal government’s response to Ebola a central part of its midterm elections strategy,” the study reads. “Television media played into Republicans’ hands, helping to foment panic about the disease.”
CNN showed the most significant decrease in Ebola coverage following the midterms, airing 335 segments in the weeks leading up to Election Day and just 10 in the period after. Fox News’ coverage fell from 281 segments to 10, and MSNBC recorded a disparity of 222 segments to 13.
Broadcast networks showed a pronounced dip in their Ebola coverage as well.
“CBS’ 54 segments dropped to six, NBC’s 44 segments dropped to five, and ABC’s 39 segments dropped to four,” according to the study.
But even before the compilation of this data — before the correlation between Ebola and the midterm elections became so clear — the media faced harsh criticism for the fervor and panic with which it reported on a virus that had only infected, at most, a handful of U.S. citizens.
In October, Fox News’ Shepard Smith scolded his colleagues in the press for their “irresponsible” and “hysterical” handling of the story.
USA Today columnist Rem Rieder, notes Media Matters, called the “breathless, alarmist reports” on Ebola “the antithesis of what responsible journalists should be doing,” in a piece published a week prior to the midterms.
And despite all the reports and panels, and the hours upon hours of segments leading up to Election Day, the coverage was still rife with misinformation and largely incomplete. News outlets obsessively scrutinized the handling of few isolated cases of Ebola within the U.S. while all but ignoring the thousands dying from the disease at the source of the outbreak.
“If poor media coverage can create an atmosphere of anxiety and misinformation, then the right kind of coverage can lead to a more active and productive public response,” Jason Linkins wrote for The Huffington Post in October. “To achieve this, the media needs to recognize that the true center of gravity in the Ebola story is the crisis in West Africa.”
By: Jackson Connor, The Huffington Post Blog, November 19, 2014
“A Backwards Looking Losing Theme”: The GOP Already Has The Wrong Message For 2016
Let’s “restore” America.
This theme has been an undercurrent of Republican politics since the 2008 elections, when President Obama and the Democrats won control of two of the three branches of the U.S. government. It was also an explicit goal of the Tea Party. Now, it looks like Republicans are testing it out as a slogan for the 2016 elections, including the key presidential contest.
If Jeb Bush runs, and wins, the GOP might mean “restore” almost literally, in the dynastic sense. But mostly the message is that the Republican Party is volunteering to clean up the mess those Democrats made, bringing us back to some idyllic time in America (probably the 1980s).
At The Atlantic, Peter Beinart has an entire article dedicated to “the Republican obsession with ‘restoring’ America,” including its many iterations in today’s GOP politics. “Restore” appears in the literature — both press releases and upcoming or recent books — from 2016 GOP hopefuls Marco Rubio, Ted Cruz, and Mike Huckabee, for example. It is a word that has inherent appeal for those whose politics are conservative, but it also has vaguely sinister overtones for groups that didn’t exactly have it better in the good old days.
The Week‘s resident linguist, Arika Okrent, notes that along with Rubio’s upcoming campaign book American Dreams: Restoring Economic Opportunity for Everyone, fellow presumptive 2016 presidential hopeful Paul Ryan is “Renewing the American Idea” in his book while Rick Santorum is “Recommitting to an America That Works.” All those “re-” words are “supposed to call up the idea of freshness and new blood,” she muses, “but something about the re- screams ‘do over!'”
The problem with the pledge of restoration is that it is inherently backward-looking. Americans may like the idea of America’s Golden Age — well, some Americans: “older, straight, Anglo, white, and male voters,” in Beinart’s analysis — but what they really want to hear is what a party will do to improve their future.
Democrats learned this lesson in 2004. After trying out a host of campaign themes, presidential nominee John Kerry settled on “Let America Be America Again” in late May. It’s from a 1938 Langston Hughes poem of the same name, and the message to the electorate was that President George W. Bush had broken America, or at least veered it off the right path, and Kerry would resurrect a more idyllic era (probably the 1990s).
Kerry used that line for the rest of the campaign, at times quoting extensively from the poem, and it didn’t work.
This wasn’t the only reason that Kerry lost, of course — he was leading Bush for much of the “Let America Be America Again” phase of the campaign, until “Swift Boat” August — but compare Kerry’s theme with Obama’s 2008 mantras of “Our Moment is Now” and “Hope and Change.” Big difference.
In any case, Republicans should already know that “restore America” is a losing theme. Mitt Romney’s 2012 super-PAC was the poetically nonsensical Restore Our Future. The first substantive section of the party’s 2012 platform was entitled “Restoring the American Dream.” And even the GOP’s “Great Communicator,” Ronald Reagan, couldn’t unseat fellow Republican Gerald Ford with his 1976 speech “To Restore America.”
Nostalgia is great for selling merchandise and rebooted TV and film franchises, but it’s not a very effective political cri de cœur for a national campaign. Republicans have been telling us what they’re against for the last six years — Obama — and if they want to be viable in 2016, they need to spend the next two telling us what they envision for the future.
By: Peter Weber, Senior Editor, TheWeek.com, November 17, 2014
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