Charles Krauthammer’s Take

Charles Krauthammer and Andy McCarthy are going after Obama most strongly on “rule of law” grounds. Krauthammer:

“With respect to the notion that I can just suspend deportations [of immigrants brought here illegally as children] through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”

Those laws remain on the books. They have not changed. Yet Obama last week suspended these very deportations — granting infinitely renewable “deferred action” with attendant work permits — thereby unilaterally rewriting the law. And doing precisely what he himself admits he is barred from doing.

Obama had tried to change the law. In late 2010, he asked Congress to pass the Dream Act, which offered a path to citizenship for hundreds of thousands of young illegal immigrants. Congress refused.

When subsequently pressed by Hispanic groups to simply implement the law by executive action, Obama explained that it would be illegal. “Now, I know some people want me to bypass Congress and change the laws on my own. . . . But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”

That was then. Now he’s gone and done it anyway. It’s obvious why. The election approaches and his margin is slipping. He needs a big Hispanic vote and this is the perfect pander. After all, who will call him on it? A supine press? Congressional Democrats? Nothing like an upcoming election to temper their Bush 43-era zeal for defending Congress’s exclusive Article I power to legislate.

Yes, good point. It will be interesting to see how Obama explains this– and for that matter, who will challenge him on it. If it’s no one but Krauthammer and Andy McCarthy– not even the Romney campaign– that would be interesting too. What kind of precedent will this set? I doubt that the process issue will hurt Obama politically– possibly the policy substance of it might, though probably (and I hope) not. Aside from the point that Obama seems to have previously thought what he’s doing now is unconstitutional, Krauthammer dismisses the claim of “prosecutorial discretion”:

With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. By what justification? Prosecutorial discretion, says Janet Napolitano.

This is utter nonsense. Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for. The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.

This is not discretion. This is a fundamental rewriting of the law.

I’m no lawyer and hesitate to take a stand… but I have some sympathy for Krauthammer on the legal question, though of course not on policy. Obama’s move does seem to be illegal in spirit. Continue reading Charles Krauthammer’s Take

Ruben Navarrette’s Take

Ruben Navarrette, a pro-immigration columnist, seems mad at Obama for his semi-amnesty. I can’t understand why.

Ruben Navarrette: Obama’s immigration con job (Indy Star)

President Obama’s recent immigration announcement is a moral hoax and a masterful political move.

Obama claims his administration will no longer deport young illegal immigrants if they meet certain conditions — i.e., if they are younger than 31, came here before they were 16, haven’t been convicted of a felony, have graduated from high school, attend college, or join the military.

Naturally, both the left and the right are pretty worked up. And yet, if you listen to the discussion, it’s clear that neither side understands what just happened — and, perhaps more importantly, what didn’t.

The left is driven by hope and the right is driven by fear. But they both arrived at the same place: a complete distortion of reality. Liberals — specifically, those pro-immigration-reform Latino voters who have been abandoned by Obama for the last three and a half years — are so desperate to finally have the president they voted for that every time Obama throws them a bone, they call it a steak dinner…

First, let’s get one thing straight. No matter what the media are saying, this is not really a new policy. The Obama immigration strategy is like a restaurant that keeps having its “grand opening” every few months in the hope that the gimmick will stir interest and attract customers. But with immigration, the only thing Obama is trying to attract is the Latino vote.

In March 2011, Obama told Univision’s Jorge Ramos that his administration had “refocused our efforts on those who have engaged in criminal activity” so that “we aren’t going around rounding up students.” The president called any accusation that they were deporting DREAMers — young people who might qualify for legal status under the DREAM Act because they attend college or join the military — “completely false.” Continue reading Ruben Navarrette’s Take

Is There a Downside to Presidential Nullification?

So I should have known: the most astute analysis of Obama’s semi-amnesty is by Bryan Caplan. In particular, Caplan gets at a thought that was starting to form in my mind, too, namely, what a nice thing a doctrine of presidential “nullification” might be. By “nullification,” I (and Caplan) mean that presidents could just decide not to enforce laws that they disagreed with especially strongly, which is suggested by Obama’s semi-amnesty. Of course, the Obama administration probably wouldn’t want to characterize it that way, and I’m sure the lawyers could develop other, less controversial defenses of the move which would have better (probably almost certain) odds of passing judicial muster. Or in brief: presidential nullification seems to be rather a constitutional innovation, of rather dubious legality, whereas Obama’s move is probably quite legally defensible on other, surer grounds. Still, it might set a precedent that would amount to a kind of doctrine of presidential nullification. Is that something that should make open borders support hesitate in applauding this? OK, strike that, stupid question; it’s pretty obvious that whatever constitutional principles are at stake are less morally urgent than the need to stop deporting innocent people. Let me rephrase: would there even be any significant downside to a doctrine of presidential nullification? Or as Kling and Caplan formulate it:

Kling: My reading of the policy is that the President is nullifying a law by refusing to enforce it.  That is a precedent  that could come back to haunt us.

Caplan: I say the laws on the books are so overwhelmingly wrong that even random Presidential nullification would be a huge expected improvement.  My question for Arnold: What’s the best law any future President is likely to nullify due to Obama’s precedent?  I just don’t see this slippery slope leading anywhere we should fear to slide.

Exactly. What if a President Romney refused to enforce the individual mandate provision of Obamacare? Fine by me. What if a President Romney passed de facto tax cuts by just instructing the IRS not to collect some kinds of tax? Well, 1) that wouldn’t be so terrible, and 2) it seems unlikely to happen.

Obama’s semi-amnesty does seem contrary to the spirit of the rule of law, even if he could probably make a strong claim that it’s legal. But we shouldn’t speak as if “rule of law” is an unqualified good. It depends on the content of the laws. If it’s a choice between a more chaotic situation and a more coercive situation, the former is usually better. Continue reading Is There a Downside to Presidential Nullification?

News and Commentary on Obama’s Immigration Move

Some of the news coverage on Obama’s new immigration stance:


In an election-year policy change, the Obama administration said Friday it will stop deporting young illegal immigrants who entered the United States as children if they meet certain requirements…

Those who might benefit from the change expressed joy and relief, with celebratory demonstrations forming outside the White House and elsewhere.

Pedro Ramirez, a student who has campaigned for such a move, said he was “definitely speechless,” then added: “It’s great news.” Continue reading News and Commentary on Obama’s Immigration Move

Obama’s Tepid and Temporary Immigration “Reform”

The post was originally published at the Huffington Post blog here and is reproduced with permission from the author.

The Department of Homeland Security (DHS) just released a memo outlining a temporary relaxation in prosecutorial discretion to allow unauthorized immigrants who came here when they were under the age of 16, to get a temporary two year (possibly renewable) work visa. This proposal is a truncated version of Senator Marco Rubio’s (R-FL) recent proposal and another older law called the DREAM Act. This temporary version of the DREAM Act offers a glimpse of the benefits of the real one.

Under the proposal, unauthorized immigrants who came to the United States when they were younger than 16, have lived here for 5 years, are in school or have graduated from high-school or are honorably discharged from U.S. Armed Forces, who are not criminals, and who are currently under younger than 30 can stay and receive a two year temporary work permit that can be renewed. That’s it.

The government already has legal authority to grant something called “deferred action” to unauthorized immigrants. That basically means the government will choose not deport them and instead focus on criminals or other deportation priorities. Those immigrants are then allowed, under current law, to get a temporary work permit if they show “an economic necessity for employment.”

Most unauthorized immigrants who could be legalized by Obama’s memo would meet the “economic necessity” qualifications for a temporary work permit.

Representative Steve King (R-Iowa) has already said he will sue the Obama administration to stop this memo from going into effect but his success is uncertain. Rubio rightly called the measure “a short-term answer to a long-term problem” but continues by saying that it “will make it harder to find a balanced and responsible long-term [solution].”

Since taking office, Obama’s DHS has deported over 1.2 million people in a frenzy of government immigration enforcement not seen since the 1950s. Last year his administration promised to use prosecutorial discretion to stop prosecuting those who had strong American family ties and no criminal records. Since that policy went into effect in November 2011, DHS officials have reviewed more than 411,000 cases but closed less than 2 percent of them.

Immigration enforcement officers referred to that administrative order as “a joke” which barely impacted government policy toward deportations. This year’s change could be very different.

If applied as broadly as the DREAM Act, somewhere between 800,000 and 2.1 million unauthorized immigrants could gain a temporary work permit through the administration’s actions.

Only a fraction of the economic benefits of the proposed DREAM Act will be reaped by the memo’s policy change. Political scientist Raul Hinojosa-Ojeda estimated that an amnesty similar to 1986 would yield at least an added $1.5 trillion to GDP over a single decade. If the maximum of 2.1 million eligible unauthorized immigrants are legalized under the Dream Act, we would gain at least $250 billion in additional production over the next decade by a rough estimate.

A temporary two years deferment with uncertain renewals will yield benefits that are miniscule compared to what they would be under legalization.

This temporary reprieve should also have a very minimal impact on the welfare state and other government services because they are limited to those with work permits. But even if they were granted permanent resident status tomorrow, it would still be five years before they were eligible for any kind of major government assistance. In any case, immigrants use less welfare and government assistance than Americans with similar incomes.

Our government’s restrictive immigration policies fly in the face of economic reality. Most immigrants who want to come to the U.S. are denied by our immigration regulations. But just because our law doesn’t adapt to supply and demand doesn’t mean people remain idle when confronted with poverty in their home countries. A predictable outcome of immigration restrictions is that immigrants will come without authorization and Americans will want to work with them, employ them, and sell to them.

The sad situation that so many unauthorized children face, being born in another country but raised American, can only be permanently resolved with immigration reform that vastly diminishes the government’s role in regulating, limiting, and controlling immigration.

Unauthorized immigrants brought here as young children are attached to this country and our society. Many of them don’t even remember the land they were born in. It’s about time the government gets out of the way, even if it’s temporarily, and allows industrious, peaceful, and otherwise law-abiding unauthorized immigrants to not fear deportation. The next step should be real immigration reform.