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Is There a Downside to Presidential Nullification?

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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

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

CNN:

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”

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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.

Obama Promises a Reprieve for DREAMers

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Barack Obama has been a terrible president for immigrants. He has been deporting people at record rates. He seems to exploit the issue politically in the most cynical way. What he says about immigration isn’t too bad, however. Here’s his speech today:

PRESIDENT BARACK OBAMA: Good afternoon, everybody.

This morning, Secretary Napolitano announced new actions my administration will take to mend our nation’s immigration policy, to make it more fair, more efficient and more just, specifically for certain young people sometimes called DREAMers.

Now, these are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag. They are Americans in their heart, in their minds, in every single way but one: on paper. They were brought to this country by their parents, sometimes even as infants, and often have no idea that they’re undocumented until they apply for a job or a driver’s license or a college scholarship.

Put yourself in their shoes. Imagine you’ve done everything right your entire life, studied hard, worked hard, maybe even graduated at the top of your class, only to suddenly face the threat of deportation to a country that you know nothing about, with a language that you may not even speak.

Exactly. Of course, one may ask why these particular details are so important. Yes, it’s absurd to deport someone to a country they know nothing about, but it’s almost as bad to deport them to a country they had good reasons– economic hopelessness, political oppression, etc.– for wanting to leave. Yes, DREAMers have friends, have pledged allegiance to the flag, may have worked hard– but plenty of non-DREAMer illegal immigrants also have friends here, have worked (very) hard, and would be glad to take an oath of allegiance if we’d let them. Still, the DREAMers are a kind of wedge in the door, morally speaking. Continue reading Obama Promises a Reprieve for DREAMers →

“I Was a Stranger and You Took Me In…”

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That Christian churches have been a force for change at many times in history, no one can deny. Concerning how often and how important, there is a huge range of opinion. Probably the most ardent Christian social reformers would be the first to admit that Christian churches have usually been deplorably, tragically tardy in pushing for social reforms that in retrospect are obvious. On immigration, I would like to see the churches take a much stronger role than they have. On the other hand, it seems to me that to the extent that churches do take stands on these issues they are consistently on the liberal (in the best sense) and humane side of the spectrum, relative to America’s political center of gravity. The below article is a case in point.

New York Times: Evangelical Groups Call for New Stance on Illegal Immigration

Some of the nation’s most influential evangelical groups urged a solution to illegal immigration on Tuesday that defies the harsh rhetoric of the Republican primary race, which continues to undermine Mitt Romney’s appeal to Hispanic voters.

The call by the groups represents a recognition that in one bedrock element of the conservative movement — evangelical Christians — the demography of their followers is changing, becoming more Hispanic, and that Republican leaders risk being out of step with their hawkish talk of border fences and immigration crackdowns like those in Arizona.

Tom Minnery, the senior vice president of policy for one evangelical group, Focus on the Family, said many of the 11 million to 12 million illegal immigrants should be free to “come out of the shadows” and “begin the process of restitution” leading to attaining legal residency.

Mr. Minnery spoke at a Capitol Hill news conference called to announce that more than 150 Christian evangelical leaders, including from the Southern Baptist Convention and the National Association of Evangelicals, were endorsing an overhaul of immigration policy.

The evangelical leaders expressed opposition to such notions as “self-deportation,” which Mr. Romney favored in a Republican debate and which urges strict enforcement of laws to encourage illegal immigrant workers to leave the country.

A pro-reform movement has been percolating among evangelical groups for the past two to three years, with organizations and churches that align with Republicans on issues like abortion and gay marriage supporting President Obama on immigration reform.

The National Association of Evangelicals, which represents more than 40 denominations, passed a resolution calling for a comprehensive immigration overhaul in 2009. The Southern Baptist Convention did so last year.

It called for “just, fair immigration reform,” said Richard Land, president of the Southern Baptists’ ethics commission, who also attended Tuesday’s news conference.

“It passed with at least an 80 percent vote,” he said, “and four of five Southern Baptists is about as good as you’re going to get on any given day on anything.”

But Focus on the Family, the radio ministry based in Colorado, was a newcomer to the cause of an immigration overhaul.