Obama is claiming:
(1) The Executive Branch has prosecutorial discretion in terms of who it will deport. Essentially, the Executive gets to decide which cases it will pursue and which it won’t.WOW! Let me explain how unbelievably wrong this is. First, prosecutorial discretion is one of those things that shouldn’t exist in an ideal world, but it does because this world is not ideal. The idea is that on a case by case basis, prosecutors should have the discretion not to prosecute someone who has technically broken the law but prosecuting them would lead to an injustice. But this type of decision is made on an individual basis and usually is only invoked where a significant injustice would result from prosecution... it has never been used as a means to nullify a law, as Obama is proposing now. In fact, doing so would be completely unconstitutional as it would give the Executive the power to ignore the legislature at its whim. To even contemplate this is dictator thinking and shocking.
(2) Prior Executives have granted protection to particular groups from deportation.
(3) The Executive Branch has the authority to grant work permits to the groups it seeks to protect.
(4) Ergo, the White House intends to use its discretion to extend this protection and to refuse to prosecute half the illegals in the US and to issue work permits to them in the process.
Next, while the Executive has extended protection to some immigrants in the past, there has always been a very strong justification. Typically, these cases involve the protection of fundamental human rights or the preservation of life to protect these groups, such as where they are refugees from a war, ethnic cleansing or natural disasters, or where they face some sort of institutional harassment that borders on murder, e.g. gays in Africa, women seeking to avoid forced abortion in China, etc. Basically, it is to avoid returning them to a situation where they might be harmed. It has never been used as a means to circumvent the law or without a strong justification. Obama would be doing this on an unprecedented massive scale with no justification whatsoever.
Finally, let’s just square the circle by pointing out that if Obama thinks he has this right and power and that it’s justified, why only apply it to half the illegals? How does that make sense? What he is basically saying is that these people need to be protected from some evil that will befall them... but he’s only willing to help half of them. That discredits all of this even more. It shows he has no justification for protecting these people or he wouldn't leave half to suffer. It also shows that he bizarrely thinks that by only doing half, he can somehow sneak this through... incredible. And it shows that he's not acting on principle, he's acting deceptively. Even more importantly, it shows that he does think like a dictator and that the Constitution and rule of law mean nothing to him. In fact, this idea is so rotten that a great many liberals are freaking out that he may actually do this.
What has liberals most freaked out about this is something Obama apparently hasn’t even considered. Specifically, any future administration can use this same outlandish argument to invalidate any law they choose... or to apply it only to individuals and groups they dislike, e.g. why not exempt ____ from tax laws?! This is crazy! See, what Obama is doing is turning the US into a Banana Republic, at best, or a nascent Nazi Germany at worst. Once rule of law is rendered meaningless, it could take generations or bloodshed to restore it. It took our country almost 150 years to truly become a nation governed by laws rather than a nation controlled by powerful politicians who manipulate a graft-riddled government. This would undo that.
Thoughts?
21 comments:
So, what you are saying is that he would do the most damage to this country of any President since Andrew Jackson (the Father of the Democrat Party) put the spoils system into full swing and repeatedly contravened rule of law, creating a situation that would not be fixed until the Republican dominance of the late-19th century.
But even worse.
Of course, no one will believe conservatives or libertarians screaming about it. So many conservatives and libertarians have screamed "DICTATOR!" every time Obama did anything that you could have a "Boy Who Cried Wolf" thing going on.
First of all - Andrew, I hope this means you're feeling better!!
But, but, but Reagan and Bush 41 signed executive orders granting illegals amnesty!! Why oh, why is it that these racists Republicans scream that what Obama is threatening to do, is unconstitutional??
Oh, yeah, well Reagan signed an executive order allowing 500K Nicaraguans to stay if they feared death by going back to Nicaragua. That was AFTER the Control and Immigration Act of 1986 passed by a bipartisan Congress. And Congress welcomed Reagan's order because they were going to it anyway. Oh, and btw, that was a Dem majority Congress. Bush 41's exec. order was to allow Chinese students to stay if they feared persecution.
In other words Reagan managed to work with an opposition Congress to get a bipartisan immigration bill passed with no imperial threats to do it if they didn't. Why is Obama so unable to work with a Congress that would LOVE the opportunity to at least try without being threatened?
This is very worrisome but not surprising. I agree with Kit's comment on crying wolf. I have been in ongoing arguments with my in-laws who have wanted to impeach Obama. The problem I try to gently tell them is that he hasn't been found to have done anything illegal. Even if it is unconstitutional it doesn't mean it was illegal. But I suspect the impeach birds will come out again although most republicans have been very careful about using that word; even calling it a liberal dream. It make you wonder if Obama presented it on purpose to stimulate the impeachment conversation knowing that it would make conservatives look kooky.
Great analysis. Scary reading.
I think the timing for this is really strange. By promising to not do anything until after the mid-terms Obama gave the anti-legalization side reason to turn out and gave the pro-legalization side reason to stay home (since he was giving them another in a succession of IOU notes).
Thanks Anthony. This is really a shocking idea, speaking as a lawyer. If he does this, not only will he abuse a legal doctrine far beyond anything it's ever been in a democracy, but he will open the door to an effective rule of law whenever the Executive thinks they can get away with it. This is not good.
Agreed about the timing. This didn't help and won't help in the future either. I've seen article by liberals who are worried that this could well mean the a major implosion for the Democrats.
Kit, That is the problem with crying wolf... when you really see one, no one believes you anymore. Unfortunately, too many on our side have screamed "DICTATOR" about everything, no matter how minor or hypocritical. This is the first step in the real thing though. This is precisely the kind of false legalism that people like Hitler used to justify things the law didn't allow when they were still bound by law. Once that "bound by law" bit is gone, it's super hard to get it back too.
Bev, I'm feeling a little better, but not all that much. My leg is still killing me. :(
You are absolutely right about Reagan. He worked with a Democratic Congress to pass a narrow amnesty to prevent people from being returned to a regime that was threatening to do serious harm to these people. What Obama is proposing is a massive blanket amnesty without any justification other than Obama wanting to score political points with a constituent group.
Koshcat, You never know. I get the sense this is a trial balloon at this point to see how people respond. And with liberals freaking out, I can't imagine this is going the way Obama expected at the moment.
Of course, if conservatives go insane, that may provide them with cover. That's the problem with being seen as insane... you end up providing cover for the other guy. We'll see. I think the GOP gets that this is not the time to make this about themselves, but talk radio will without a doubt.
In terms of how this will play out, I'm honestly not sure how it would go. I would suspect a court would impose an injunction on this immediately, but if Obama ignored it, there isn't much the courts can do honestly. And I don't know how this Supreme Court would react. They should strike this down, but this court has surprised us a lot.
Lebensraum for the immigrants. Soon there will be a mysterious fire in congress, and he will round up all of the legislators to "protected."
First of all, welcome back (with a vengeance), Andrew!
I agree with Anthony. The timing is crazy, though I have a few ideas.
First, Obama is a nutcase control freak. (Losing Congress can't help in these matters.) Power is power and he intends to use it, no matter what. Remember, he's spent the better part of the last four years calling for the people to help him (i.e. vote out) defeat his "enemies" (the Republicans). Now, there's no point to that since he's down to his last two years. This is all he's got left. Honestly, without the "enemies" line and his own party ready to disown him, I 'd been wondering what he was going to whine about.
Or, maybe he's just baiting the Republicans to challenge him, and threaten to either censure or impeach him. Perhaps he feels this will garner sympathy like Clinton got back in the day and maybe make people feel better about the victimized Dems after being scared by the witch-hunting Repubs. Ah, who am I kidding? Obumbler's not that smart. If this is planned, either Axelrod or some other strategist is behind it- all the while leading Barry to believe he's the ringmaster, of course.
And honestly, this reminds me a lot of FDR's court-packing scheme. What better way to intimidate SCOTUS than to threaten to redo/(undo?) its makeup? SCOTUS did, after all, stop striking down New Deal legislation after that. But then again, the plan created a schism in the Democratic Party (which never healed during FDR's time in office), which ended FDR's ability to implement domestic policy. (And also would've ended Roosevelt's administration in shame had Tojo and Hitler not had other ideas.)
And then, maybe this overgrown manchild, living in a bubble that would- to recall some of Andrew's earlier postings- make Ben Shapiro look like a streetwise socialite, is just throwing a tantrum. He wants to get what he wants because he said so and he doesn't care what he has to smash to get there.
You know, Cosa Nostra has long held a general rule that you don't make a poor man the boss. Inevitability, they get greedy and worry only about their own enrichment at the expense (and often, in this example, lives) of others. Such situations usually end in the ruin of the mafia organizations. (ex: Albert Anastasia and the Mangano Family; Carmine Persico and the Columbo Family; Nicky Scarfo and the Philly Mob; etc.) Yes, I probably watch more mob documentaries than is healthy for the average person.
But if this is a precedent that can be applied to political parties as well, and if this plan of Obama's falls through, (and the GOP uses their heads this time), this could prove bad for the Democrats.
Fingers crossed.
Jon, The oldest tricks are the best tricks.
In all seriousness, this is a more subtle issue. This is the kind of thing that will happen one law at a time until there is a clear precedent and then suddenly one day people will realize that rule of law is basically dead.
Thanks Rustbelt!
I think Obama is looking for a legacy and he knows he won't get one through anything he's done or anything the Congress is likely to let him do. So now that he can't be blamed for the destruction of the party at the midterms, he's going to toss this Hail Mary pass in the hopes of getting his legacy.
BTW, there was an interesting article from the AP of all people who noted that dependably liberal Oregon voters blasted the Democrats' plans to hand out drivers licenses. They AP sees this as a huge warning to the Democrats that even their supporters aren't with them on this issue.
Andrew, if the AP is reporting on a schism in Oregon over this issue, then things must be getting pretty bad in Obamaland! (Figure of speech. Not Illinois.)
USA Today had a report on polls showing public resistance to Obama passing amnesty via Executive Order. 46% say he should wait, 42% say he should act now, and 12% don't know.
LINK
Oh, and 60% say he should pass the Keystone Pipeline and 63% support the US-China deal to reduce carbon emissions.
Glad to see you're doing better, Andrew!
I'm also glad to see you upset about immigration for a change, although that could be the meds. :p
Personally, as the phants have rightfully ruled out impeaching the SOB, I expect they will allow Obama to make the unpopular move, take full political advantage from it and then amnesty the illegals Obama pardoned under the next administration instead of forcing them back into an illegal mode. Thereby satisfying both the progressives and the wealthy A-holes who have monetarily supported the Republicans turning their backs on the porous borders. Not much will change in the long run as the rest of the illegals will still be looking for amnesty and performing as Democratic shadow voters and funders in the process.
It has been a while since I have commented. I really enjoyed this post, since it is always good to get an attorney's view of the issue. The only portion of your three points to which any argument could be mounted is the second. I say this because the notion of what is actually important is, on it's face, open to interpretation. That said, I happen to watch Brett Baer's panel tonight and Krauthammer made a good observation: Obama has not even bothered to try and justify his action on any rationale other than "I think the system is broken, and I have waited long enough".
Rustbelt, I had the same thought. If the AP is pointing at Oregon as a warning, then things are very touchy in liberal land right now.
Kit, Those numbers strike me as wrong, unless people just haven't heard about the executive order yet. Unfortunately, polling has become unreliable voodoo in this country of late.
Thanks K. I am doing a little better. Still lots of pain, but not enough to stop me.
I am concerned about immigration... always have been. But I'm trying to be rational about it too. There are some "solutions" we simply will never get to happen. So to me, the issue is "of what is possible, what is the best possible result and how do we get there on our terms." And one of my biggest concerns is that while we do nothing, the problem just keeps getting worse. Had we put a solution in place two years ago, there would have been no flood of children now for example.
We need to fix the entire system, including (1) fixing the borders, (2) finding a way to track who is here, (3) getting the illegals who are here out of the shadows, (4) stopping the incentives for more to come, (5) making sure American workers come first, and (6) even limiting legal immigration, which is currently set way too high.
Instead, both sides fight for the sake of political fundraising as these problems fester.
Jed, Glad you commented! I've always enjoyed your insights! :D
The FOX guys are absolutely right: Obama has never offered a valid justification. All he says is, "this is what I want and it's happening too slowly." I think that's why his poll numbers are so low on this issue. But then, as we've said many times before, he's a horrible politician and a narcissist who thinks he should get what he wants because he deserves it rather than going out and trying to earn it.
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