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Obama to Ignore Immigration Law, Pretend DREAM Act Passed

Frustrated by its inability to get laws passed through Congress, the Obama administration has decided to stop following laws already passed by Congress and act as if its preferred policies are law.

AP (“Immunity offered to certain immigrants“):

The Obama administration will stop deporting and begin granting work permits to younger illegal immigrants who came to the U.S. as children and have since led law-abiding lives. The election-year initiative addresses a top priority of an influential Latino electorate that has been vocal in its opposition to administration deportation policies.

The policy change, described to The Associated Press by two senior administration officials, will affect as many as 800,000 immigrants who have lived in fear of deportation. It also bypasses Congress and partially achieves the goals of the so-called DREAM Act, a long-sought but never enacted plan to establish a path toward citizenship for young people who came to the United States illegally but who have attended college or served in the military.

Homeland Security Secretary Janet Napolitano was to announce the new policy Friday, one week before President Barack Obama plans to address the National Association of Latino Elected and Appointed Officials’ annual conference in Orlando, Fla. Republican presidential challenger Mitt Romney is scheduled to speak to the group on Thursday.

Obama planned to discuss the new policy Friday afternoon from the White House Rose Garden.

Under the administration plan, illegal immigrants will be immune from deportation if they were brought to the United States before they turned 16 and are younger than 30, have been in the country for at least five continuous years, have no criminal history, graduated from a U.S. high school or earned a GED, or served in the military. They also can apply for a work permit that will be good for two years with no limits on how many times it can be renewed. The officials who described the plan spoke on the condition of anonymity to discuss it in advance of the official announcement.

The policy will not lead toward citizenship but will remove the threat of deportation and grant the ability to work legally, leaving eligible immigrants able to remain in the United States for extended periods. It tracks closely to a proposal offered by Republican Sen. Marco Rubio of Florida as an alternative to the DREAM Act.

Now, I happen to think our current immigration policy is absurd and think the Obama-Rubio plan preferable. It simply makes no sense to deport adults who have lived in the United States for years, obeyed our laws, and otherwise demonstrated that they are doing the right things. But the president isn’t a benevolent dictator; he’s taken an oath to obey and enforce the law of the land.

The change is likely to cause an outcry from congressional Republicans, who are sure to perceive Obama’s actions as an end run around them. Republicans already have complained that previous administration uses of prosecutorial discretion in deportations amount to back-door amnesty.

Probably on account of it amounting to back-door amnesty.

Romney and many Republican lawmakers want tighter border security measures before considering changes in immigration law. Romney opposes offering legal status to illegal immigrants who attend college but has said he would do so for those who serve in the armed forces.

While I think it’s wrongheaded, the Republican position is understandable. We can’t accommodate everyone who wants to enter the country, have a right to decide who gets to do so, and it’s galling to essentially reward people for breaking American law. But the people in question, whose parents brought them here as children, aren’t lawbreakers in anything but a technical sense–if that.

Regardless, the key issue here is one of the Constitutional balance of power. Presidents, of course, push the envelope all the time. Typically, though, it’s done in the arena of national security policy, where the Constitution creates “an invitation to struggle” and where the stakes of dawdling can be quite high. In the matter of border policy, however, there’s simply no question where the power lies and no exigent circumstances to justify flouting the law.

UDPATE: There’s an excellent discussion  in the comment section below, including some pushback from my colleagues Steven Taylor and Doug Mataconis arguing that this is simply the president choosing how to allocate scarce resources.  While I take their general point, I do think ignoring the express will of Congress directly after losing a political fight is different from selective enforcement of older legislation.

Additionally, it’s worth noting that President Obama agreed with me on this very issue a year ago:

In the past, Obama has said he doesn’t have the power to stop the deportation of Dreamers. “There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as President,” Obama told one Dreamer who asked him why he couldn’t halt young people’s deportations in March of 2011.

I haven’t yet been able to find–and thus haven’t  read–the president’s full remarks on this. So far, all I’ve seen are excerpts arguing that it’s the right thing to do from a policy standpoint. On that, we agree. But I’m far from sold that it’s the right thing to do from the standpoint of the rule of law.

 

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Rob in CT says:

    So, assuming your assessment of this is correct (that’s is POTUS overreach), what is the proper Congressional response?

    Like or Dislike: Thumb up 3 Thumb down 0

  2. mattb says:

    @Rob in CT: If Obama wins re-election, does anyone want to take bets if this is what will be used to start the impeachment drumbeat?

    Like or Dislike: Thumb up 4 Thumb down 3

  3. Vast Variety says:

    @Rob in CT: Pass the Obama-Rubio version of the Dream Act instead of playing politics.

    Like or Dislike: Thumb up 6 Thumb down 3

  4. My question, and I do not have an answer at this point: is this an issue of ignoring the law or one of choices about enforcement. Further, is the granting of work permits to those without proper visas permissible under the law or not?

    Like or Dislike: Thumb up 13 Thumb down 4

  5. Franklin says:

    While I agree with the post, is there any way this could be used as a negotiating position (to move some immigration legislation forward)? I realize that probably ain’t going to happen in an election year, but …

    Like or Dislike: Thumb up 1 Thumb down 0

  6. Vast Variety says:

    @Steven L. Taylor: Haven’t previous presidents done something similar?

    Like or Dislike: Thumb up 2 Thumb down 5

  7. mattb says:

    Now, I happen to think our current immigration policy is absurd and think the Obama-Rubio plan preferable. It simply makes no sense to deport adults who have lived in the United States for years, obeyed our laws, and otherwise demonstrated that they are doing the right things.

    Yes.

    But the president isn’t a benevolent dictator; he’s taken an oath to obey and enforce the law of the land.

    Yes. And this seems, from that perspective, more egregious than the earlier decision not to defend DOMA/DADT cases.

    The key issue here is one of the Constitutional balance of power. Presidents, of course, push the envelope all the time. Typically, though, it’s done in the arena of national security policy, where the Constitution creates “an invitation to struggle” and where the stakes of dawdling can be quite high.

    Very good points. This seems to be Obama’s Roosevelt “Court Packing” moment. In that case Roosevelt got the Supreme Court to back down. It will be interesting to see how Congress (broadly), and the Republicans in particular, will handle this.

    While it’s without a doubt an unconstitutional overreach, it might actually force positive change.

    And there’s no doubt that its a shrewd political move — not only does it feed red meat to the Democratic base (and I suspect for that reason we’ll see more of these stunts), it also forces the Republicans hand (do they double down and continue to lose a significant portion of the latino vote and other independents) or do they attempt to present their own plan and potentially alienate the more socially conservative wing of their own base?

    Like or Dislike: Thumb up 4 Thumb down 3

  8. Not exactly the DREAM ACT. Via WaPo:

    According to DHS, eligible immigrants will now receive “deferred action,” which essentially means a two-year reprieve from deportation along with a permit that allows them to work. The deferral will be available to any immigrants who came to the United States under the age of 16, have lived in the country continuously for at least five years, and are currently in the country. They must be currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the military or the Coast Guard.

    Deferred action is not the same as permanent residence and a path to citizenship.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 1

  9. Rob in CT says:

    Question: is there a fundamental difference between this and a “signing statement” (that may be too vague, as not all signing statements are the same)?

    Anyway, I’m all for immigration reform – more legal/less illegal, coupling better enforcement (employer side) with sensible stuff like this Rubio/Obama plan. The last run at it was under Bush the Younger, and I vaguely recall his position on the whole thing being pretty reasonable. I also recall Conservatives being pissed about it. Therefore, I expect no progress in Congress.

    What I meant by my question about congressional response is this: if Obama is flouting the law by doing this, what recourse does Congress have? Is it impeachment, or is there something milder available?

    If Obama wins re-election, does anyone want to take bets if this is what will be used to start the impeachment drumbeat?

    Start? And it’ll be a laundry list, I expect.

    Like or Dislike: Thumb up 4 Thumb down 0

  10. I think Steven is on to something. Law enforcement has long made decisions about how to “allocate resources,” without changing the underlying law.

    Like or Dislike: Thumb up 10 Thumb down 1

  11. mattb says:

    Opps, that should have read “While AT FIRST GLANCE it APPEARS an unconstitutional overreach, it might actually force positive change.”

    Like or Dislike: Thumb up 3 Thumb down 0

  12. @Steven L. Taylor:

    Oh, deferred action is an interesting wrinkle.

    He’s daring the Romney campaign to promise to deport them all.

    Like or Dislike: Thumb up 11 Thumb down 1

  13. PD Shaw says:

    In Illinois, when the governor sought to expand healthcare coverage for children, and the legislature refused to pass it, he did it anyway. And then he was impeached for it.

    Like or Dislike: Thumb up 5 Thumb down 0

  14. @Vast Variety: Choices about enforcement are not unusual. There are a finite number of law enforcement officials and presidents make decisions as to where to focus. This strikes me as fairly normal. We do not (and cannot) equally enforce all the laws–it is physically impossible. If we did, for example, there would be no marijuana dispensaries in CA, as they clearly violate federal law.

    My question is more about the work permits.

    Like or Dislike: Thumb up 9 Thumb down 1

  15. We can’t accommodate everyone who wants to enter the country,

    We can’t?

    [We] have a right to decide who gets to do so,

    Who is “we”? I’ve certainly never been consulted on who gets to be here.

    and it’s galling to essentially reward people for breaking American law.

    It says something about how you view the proper relationship between the individual and the state that not being kidnapped and abandoned hunderds or thousands of miles away from your home just because one of your neighbors doesn’t like you qualifies as a “reward” in your mind.

    Hot debate. What do you think? Thumb up 18 Thumb down 7

  16. al-Ameda says:

    @mattb:

    If Obama wins re-election, does anyone want to take bets if this is what will be used to start the impeachment drumbeat?

    Obama will be impeached during his second term simply because Republicans control The House. Not that they need any legitimate reason to impeach him, but they would use this and ‘Fast & Furious’ as the pretext.

    Like or Dislike: Thumb up 8 Thumb down 2

  17. Vast Variety says:

    @Steven L. Taylor: So kind of like the Govener of a state ordering state officals to recognize out of state same-sex marriages when his own state prohibts them.

    Like or Dislike: Thumb up 1 Thumb down 0

  18. Vast Variety says:

    i’m justr trying to put his action into context.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. PD Shaw says:

    @Rob in CT: If Congress doesn’t approve, then Congress should call the executive branch official in charge of this program to testify and demand to know the authority by which the POTUS is acting. If the authority exists, then Congress should amend the law. If it doesn’t exist, then Congress should use the many means at its disposal to retaliate against the Executive, including as a last resort impeachment.

    Like or Dislike: Thumb up 6 Thumb down 1

  20. billd says:

    Its an excercise in executive discretion that can easily be reversed on day 1 of a Romney administration, right?

    so simply elect romney and let the deportations begin!

    Like or Dislike: Thumb up 8 Thumb down 1

  21. @Vast Variety:

    So kind of like the Govener of a state ordering state officals to recognize out of state same-sex marriages when his own state prohibts them.

    That actually strikes me as more problematic (or, at least, not analogous).

    More like: the chief of police deciding to put the squad cars on the interstate to enforce the speed limit and not putting them on the rural highways.

    There are a finite number of people who can be deported, so the focus should be on persons older than a certain age and who are in a certain class. This strikes me as normal.

    Again, my question remains on the work permit question.

    Like or Dislike: Thumb up 2 Thumb down 0

  22. @billd:

    Sure, though it might put a hitch in that “court the Hispanic” plan.

    Like or Dislike: Thumb up 3 Thumb down 1

  23. PD Shaw says:

    @Steven L. Taylor: I don’t know the answer to your question, but the problem is going to be more with the immunity. Obviously executives have great discretion to “not enforce” any given law. But selecting certain people to be “immune” from the law in perpetutity is a pretty extreme act.

    Like or Dislike: Thumb up 3 Thumb down 0

  24. James Joyner says:

    @Rob in CT: @mattb: Presumably, Congress could file for an injunction to overturn this policy. If granted and Obama continues to ignore the law, then impeachment is certainly in order.

    @Steven L. Taylor: I grant that the executive has to make choices about how to allocate resources. But this goes beyond that: The president is simply declaring that, as a matter of policy, he’s going to ignore the law. Presumably, even if illegals are captured be DHS, they’ll be released if they can prove they meet the DREAM criteria.

    @Steven L. Taylor: Presumably, he can’t simply executive order his way into citizenship grants.

    @Stormy Dragon: We have a representative form of government. Congress has passed a plethora of laws on the subject over the span of 200 plus years. You don’t have a personal veto.

    The “reward” is being allowed the benefit of working and living in the United States that those who follow our laws are being denied until such time as they work their way through our system and get to the head of the line. Given the number in that line, that’s a hell of a reward.

    Like or Dislike: Thumb up 10 Thumb down 2

  25. Richard Gardner says:

    I’m curious about the “or served in the military” part. In order to enlist you can’t be in the country illegally. You don’t have to be a citizen, but career paths are very limited for non-citizens as they can’t get a US security clearance. The only ways I can see this happening is with a fraudulent enlistment (fake papers), or had legal immigration status that had been revoked or lost (returned to native country for a few years?)..

    Like or Dislike: Thumb up 2 Thumb down 0

  26. mattb says:

    @billd:

    Its an excercise in executive discretion that can easily be reversed on day 1 of a Romney administration, right?

    Which as an aside was the Obama Administration’s rational for seeking to legislatively end DADT versus ending it via executive order and then moving on.

    Really interesting points @Steven L. Taylor. Up until this point the Obama Administration’s direction has been to very aggressively prosecute immigration cases. If this can be framed as a shift in enforcement (versus law) then it represents a pretty major shift from the current policy.

    Like or Dislike: Thumb up 2 Thumb down 0

  27. @James Joyner:

    Presumably, he can’t simply executive order his way into citizenship grants.

    Clearly not–but you have lost me here, as this isn’t what is going on, just, as per the WaPo quote, deferred enforcement.

    Like or Dislike: Thumb up 2 Thumb down 1

  28. @mattb:

    Up until this point the Obama Administration’s direction has been to very aggressively prosecute immigration cases. If this can be framed as a shift in enforcement (versus law) then it represents a pretty major shift from the current policy.

    I am not sure that the two can’t exist side-by-side. There was already a focus, if memory serves, on deporting criminals over non-criminals. Aggressive deportation of non-minors can continue apace.

    Like or Dislike: Thumb up 3 Thumb down 0

  29. mattb says:

    @James Joyner @Rob in CT @Steven L. Taylor:
    What precedent is there around Signing Statements and Executive Orders? It seems like that’s a section where, despite the bluster, there have been few legal challenges that have gone through the Federal Courts on these topics. That, to one degree or another, muddies the waters quite a bit.

    @PD Shaw & @James Joyner: I need to talk with my resident constitutional lawyer about the issue of selective immunity you two have raised. To Steven’s point, it’s one thing to stop administering a law by not arresting anyone. It’s entirely different to initially arrest people and then release certain people and not others based on executive fiat.

    Like or Dislike: Thumb up 1 Thumb down 0

  30. James Joyner says:

    @Steven L. Taylor: Right. I’m just conjecturing as to why he stopped at “deferred enforcement” vice the DREAM Act’s outright grant of citizenship.

    Like or Dislike: Thumb up 1 Thumb down 0

  31. @James Joyner:

    The president is simply declaring that, as a matter of policy, he’s going to ignore the law.

    No, the administration is smarter than this. They are following the law, but more slowly in the case of minors.

    To come up against it, Congress would need to put a time factor into law. They’d need to say that “suspected illegals must be processed within X days, and those who cannot document citizenship in that time must be deported.”

    Of course, I believe some mistakes have been made at the current pace …

    Like or Dislike: Thumb up 5 Thumb down 0

  32. LaurenceB says:

    As Dr. Taylor points out, there are not resources to deport every deportable alien; and in recognition of that fact the de facto policy for some time has been to concentrate on criminal deportable immigrants. And with the new policy I think it’s reasonable to assume that that has not changed. So I think Dr. Joyner’s indignance over the new policy is a little bit overwrought.

    That having been said, Taylor quite correctly identifies the granting of work visas as a new wrinkle. Like Taylor, I question whether or not that is legal. I wonder if perhaps the reporting on that point is not entirely accurate. I’d like to see more light shed on that.

    Like or Dislike: Thumb up 7 Thumb down 0

  33. (Obama would love to see Republicans introduce a “within X days” law now.)

    Like or Dislike: Thumb up 2 Thumb down 1

  34. Tlaloc says:

    This is exactly the kind of thing a president can and really should do when the laws are odious. You prioritize other functions and leave the bad laws as the absolute last thing to be enforced.

    That’s part of the checks and balances as it allows a president to mitigate the bad laws of congress. Without that the president has no check on congress- they legislate and he merely obeys, you might as well make him a subsidiary structure of congress. Enforcement means choosing how to enforce, which means choosing what to kick to the bottom of the list.

    Like or Dislike: Thumb up 13 Thumb down 3

  35. @LaurenceB:

    That having been said, Taylor quite correctly identifies the granting of work visas as a new wrinkle. Like Taylor, I question whether or not that is legal. I wonder if perhaps the reporting on that point is not entirely accurate. I’d like to see more light shed on that.

    Congress may not have thought to put a limit on the ability of embassies to grant visas, leaving that to executive branch discretion.

    But even if there is a numeric limit, the minors plan could probably work within it. Surely the numbers are not huge.

    Like or Dislike: Thumb up 2 Thumb down 1

  36. @James Joyner:

    Our country is also founded on the idea that individuals have rights which cannot be infringed no matter how popular it is. Immigrants who have not come here with criminal intent have the right to go about their business free from harassment. If our government refuses to accept that right, than it is wrong, however representative it is. Yes, it is the law that they be deported; by why should I care whether or not that is the law?

    Like or Dislike: Thumb up 5 Thumb down 3

  37. That should be “come here with no criminal intent”.

    Like or Dislike: Thumb up 2 Thumb down 1

  38. Actually, we should make predictions … I say Romney is forced, he must say he’ll deport these minors.

    Like or Dislike: Thumb up 6 Thumb down 1

  39. The immigration laws do allow the Executive Branch significant discretion when it comes to enforcement priorities and policies, deportation criteria, and the circumstance under which waivers might be granted to people otherwise in violation of the immigration laws. So, while I tend to agree that it’s somewhat inapproptiate at least for the President to use Executive Order to implement policies that ought to be debated by Congress, I don’t think there’s anything unconstitutional going on here.

    Like or Dislike: Thumb up 13 Thumb down 4

  40. PD Shaw says:

    I see the same problems here as with Obama’s medical marijuana policy. He can decide not to enforce marijuana laws in California, and he might even be able to require his U.S. attorneys to comply with the policy. But there’s little to prevent him from changing his mind or policy, and much less to prevent a future President from rescinding the whole thing.

    In that context, who wants to put their name on a government document that identifies yourself as either breaking the law or lacking adequate documentation to prevent deportation?

    Like or Dislike: Thumb up 1 Thumb down 0

  41. mattb says:

    @Stormy Dragon:

    Immigrants who have not come here with [no] criminal intent have the right to go about their business free from harassment.

    The issue, like it or not, is if they have entered the country illegally (circumvented the current laws), then they have already committed a criminal act — even if they are model “citizens” once they arrive.

    We can get into discussions about the legality of the law or the level of offense, but that initial breaking of the law can’t be ignored.

    To ride the slippery slope for a moment, otherwise why should we care about any past criminal actions? Taken to an extreme, that argument leads us to it doesn’t matter if someone once “got away with” murder as long as they were a good person after the murder happened.

    Like or Dislike: Thumb up 6 Thumb down 1

  42. @PD Shaw:

    In that context, who wants to put their name on a government document that identifies yourself as either breaking the law or lacking adequate documentation to prevent deportation?

    Presumably no one goes in to sign such a thing. It’s an ultimatum offer during processing.

    Like or Dislike: Thumb up 0 Thumb down 0

  43. PD,

    When the law gives the Executive discretion then there’s little use in arguing over how the Executive chooses to exercise that discretion.

    Like or Dislike: Thumb up 6 Thumb down 2

  44. You know, as with the contraception thing, the Obama administration is showing a strategy of playing against GOP extremism.

    Feeding the squirrels.

    They’ll probably keep doing things that seem minor to centrists but which force Republicans to self-identify further right.

    Like or Dislike: Thumb up 13 Thumb down 2

  45. Jenos Idanian #13 says:

    This is of a piece with the administration’s position on Arizona’s Act 1070: they are saying that enforcing immigration laws is exclusively an Executive prerogative, and no one else can intervene. And should the Executive simply decide to NOT enforce the laws, then no other party has any standing to complain or take up the role themselves.

    It’s heinously wrong, but it is consistent.

    Like or Dislike: Thumb up 1 Thumb down 8

  46. Jenos,

    The Executive Branch isn’t deciding to not to enforce the law, it is exercising the discretion granted by the laws duly passed by Congress.

    Like or Dislike: Thumb up 4 Thumb down 3

  47. James Joyner says:

    @Tlaloc:

    That’s part of the checks and balances as it allows a president to mitigate the bad laws of congress. Without that the president has no check on congress- they legislate and he merely obeys, you might as well make him a subsidiary structure of congress.

    The Constitution is pretty clear here: Congress passes the laws and it’s the president’s duty to make sure they’re enforced. The president is abrogating his Constitutional oath here.

    Further, the president has rather substantial power: the veto. That means, if the president opposes the law, he can force both Houses of Congress to override him by mustering a 2/3 supermajority. That’s damned hard to do. Granted, this doesn’t work on laws passed under previous presidents. But that’s the system we have and the rule of law.

    Like or Dislike: Thumb up 5 Thumb down 6

  48. Under the administration plan, illegal immigrants will be immune from deportation if they were brought to the United States before they turned 16 and are younger than 30, have been in the country for at least five continuous years, have no criminal history, graduated from a U.S. high school or earned a GED, or served in the military

    By the way, the last 5 words are interesting.

    Are we seriously deporting people who served in the military?

    Like or Dislike: Thumb up 3 Thumb down 1

  49. nightrider says:

    I doubt this is as much a push as Reagan-era “enforcement” of the environmental protection laws. Presidential elections have consequences too, not just the congressional ones.

    Like or Dislike: Thumb up 1 Thumb down 0

  50. @mattb:

    Taken to an extreme, that argument leads us to it doesn’t matter if someone once “got away with” murder as long as they were a good person after the murder happened.

    So you’re saying that you only care about murder because it’s a illegal, and that if the law against it were repealed tomorrow, you’d be perfectly happy to live amongst now law-abiding killers?

    I care about people who got away with murder because the act of murder itself is wrong, regardless of whether it is legal or not. Likewise, the act of moving somewhere and living a peaceful life is not wrong, regardless of whether it is legal or not.

    Like or Dislike: Thumb up 4 Thumb down 2

  51. @James Joyner:

    The president is abrogating his Constitutional oath here.

    No. A deferral in processing is not the same thing as double secret citizenship.

    Like or Dislike: Thumb up 9 Thumb down 4

  52. @James Joyner:

    Congress passes the laws and it’s the president’s duty to make sure they’re enforced. The president is abrogating his Constitutional oath here.

    I would argue that this is far too strong of a formulation, because as I have noted, presidents (and AGs, etc) make choices all the time about enforcement. Again: no one (not Bush nor Obama) sent the DEA in to shut down marijuana dispensaries in CA. This choice does not strike me as abrogating constitutional oaths.

    Like or Dislike: Thumb up 9 Thumb down 2

  53. Tsar Nicholas says:

    Prosecutorial discretion is prosecutorial discretion, whether we’re talking about a local D.A. or the POTUS. Voters have the ultimate remedy. Elections matter. I have no issue whatsoever with the deportation moratorium. Not only legally but practically speaking too. I would have done the same thing.

    With the work permit diktat, however,Team Obama literally has jumped the shark tank. That’s legislation by the executive branch. Imagine if the shoe was on the other foot. That the DREAM Act was law but that a Republican president issued an EO voiding the attendant work permits. Can you fathom the hysterical reaction among the Internet’s chattering classes? Yikes.

    From the standpoint of pure power politics, and putting aside the legal niceties, I love this move by Team Obama. It’s political genius. Several of the key battleground states have much higher than average Latino populations. This move forces Team Romney either to take a soft line (and anger the erstwhile GOP “base” even moreso) or to take a hard line (putting off Latinos, moderates and Independents).

    Axelrod really is on his A-game. The man is a pro.

    Like or Dislike: Thumb up 5 Thumb down 2

  54. @john personna:

    You know, as with the contraception thing, the Obama administration is showing a strategy of playing against GOP extremism.

    I think that there is clearly something to this.

    Like or Dislike: Thumb up 10 Thumb down 0

  55. Steven & John,

    Except immigration is a double-edged sword for the Democrats as much as it is the Republicans. Something like this might help with the Latino vote, but it has the potential to hurt the President among other voters, especially in swing states.

    Like or Dislike: Thumb up 3 Thumb down 0

  56. PD Shaw says:

    @Doug Mataconis: I disagree with your assumption that the law gives that much discretion. The Immigration and Nationality Act restricts the circumstances in which an alien can be given visas. The Department of Labor has authority to pass rules under the Act, but Obama appears to be bypassing rulemaking here. He has either found a hole in the coverage of these laws or he has not.

    Like or Dislike: Thumb up 2 Thumb down 0

  57. @Doug Mataconis:

    I assume they’ve done their focus groups. Assuming this can be painted as “deporting kids,” it could be only the GOP core, those votes unobtainable to Obama, who strongly object.

    Like or Dislike: Thumb up 3 Thumb down 1

  58. Franklin says:

    @Steven L. Taylor:

    Deferred action is not the same as permanent residence and a path to citizenship.

    From the AP article: “They also can apply for a work permit that will be good for two years with no limits on how many times it can be renewed.”

    Your point stands, but from my understanding it sounds more like “indefinitely deferred action”, which sounds a lot closer to permanent residence.

    Like or Dislike: Thumb up 0 Thumb down 0

  59. PD,

    The Act gives wide discretion to the Executive Branch, principally in the person of the Immigration Judges who hear most cases involving people who are out of status, wide discretion to grant waivers from deportation and other forms of relief. Frankly, I think that’s a good thing.

    Like or Dislike: Thumb up 2 Thumb down 1

  60. James Joyner says:

    @Steven L. Taylor: I haven’t paid as much attention to the medical marijuana issue but it strikes me that there’s a rather key difference: in that situation, the president is choosing not to enforce decades-old laws in the face of much more recent action by the citizens of the several states. Here, the president is deciding not to enforce the law in light of very recent failure to get Congress to change the law. So, Congress had very recently expressed its will that the law be enforced and the president is telling them to screw off. To me, that’s a very dangerous precedent despite my preferring this policy outcome.

    Like or Dislike: Thumb up 1 Thumb down 0

  61. PD Shaw says:

    @Doug Mataconis: I agree on the politics. Democrats lost seats in 2010 in the Midwest in part on the issue of immigration amnesty. This will help him in some places and hurt in others.

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  62. Focus groups don’t decide elections, John

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  63. @James Joyner: The thing is, though, the state laws in question are in direct contravention of federal law (regardless of timing) and the Supremacy Clause is pretty clear on who wins the fight.

    That entire situation is a very clear case of selective non-enforcement.

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  64. mattb says:

    @Stormy Dragon: I’m saying that living in a society always requires balancing natural rights with those deemed important by that society (via codafication into law).

    Do I think our current immigration laws need serious revision? Yes.
    Does that fact mean that they should be ignored? No

    My use of murder was admittedly an extreme. But the argument still holds true. Regardless of related moral issues, if the law is on the books, then it should, generally speaking, be enforced. Now if it’s legal for the executive to avoid enforcing it, then that’s cool, though an effort should be made to also amend or end the law. And in that act of amending/ending, it is ok to grant amnesty to past violators. But that needs to be done via the process.

    And while the law is being enforced, it’s still the “right” of the individual to disobey it. But that “natural right” does not mean that individual should be able to avoid the necessary penalties if caught violating that law.

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  65. mattb says:

    @Doug Mataconis:

    Something like this might help with the Latino vote, but it has the potential to hurt the President among other voters, especially in swing states.

    Fair point. Though as you noted in a previous thread, not all swing states are created equal thanks to the EC.

    From a pure politics perspective, I suspect the big question (to John P’s point) is how this will play in four Swing States in particular: Florida, Ohio, Nevada, and Pennsylvania.

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  66. @Doug Mataconis:

    Focus groups don’t decide elections, John

    If they’re done right, they do.

    Let me put it another way, the people who will remember this as a strong negative for Obama in November are people who were never going to vote for Obama.

    And, we could back up and look at this as a back-fill by Obama. He has lost Hispanic support, right? As a result of his high overall deportation numbers?

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  67. @James Joyner:

    To me, that’s a very dangerous precedent despite my preferring this policy outcome.

    Really? This is a precedent? A President has never done anything like this before?

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  68. See also: Bush’s EPA Is Pursuing Fewer Polluters

    … no doubt James talked about Bush “abrogating his Constitutional oath” … if we could only find the link …

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  69. John,

    I’m not at all sure that’s accurate. The immigration opinions of the middle class blue-color voters that are likely to decide who wins states like Ohio are fairly conservative and they’re not rock-ribbed Republicans. This isn’t the issue that will dominate the election, but it’s the kind of issue that can have big impacts on the margins

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  70. @john personna: Off the top of my head, and to add to your list, I recall that the Clinton administration prioritized white collar crime and that the Bush administration focused on pornography (which had been deprioritized under the Clinton admin).

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  71. jan says:

    @James Joyner:

    Now, I happen to think our current immigration policy is absurd and think the Obama-Rubio plan preferable. It simply makes no sense to deport adults who have lived in the United States for years, obeyed our laws, and otherwise demonstrated that they are doing the right things. But the president isn’t a benevolent dictator; he’s taken an oath to obey and enforce the law of the land.

    This statement, in your opening thread, pretty much sums up how I see this.

    Unfortunately, both parties use the illegal immigration issue to politically appease their party members in hopes it will augment their own political ambitions, usually dealing with some impending election. However, the people stranded here, with no legal standing, are the ones caught in the middle of these unilaterally created policies. Because this decision is made via Presidential Order , rather than a Congressional Act, it can be considered no more than a political whim, of the moment. All it would take would be another Presidential Order to reverse all the options gained by young, fearful illegal adults. How can dreams or direction be built on such a flimsy promise, in the hands of constantly revolving political administrations?

    Out of all the embattled policy disagreements between the left and right I find the impasse on Immigration to personally be one of the most demoralizing ones.

    @mattb:

    This seems to be Obama’s Roosevelt “Court Packing” moment. In that case Roosevelt got the Supreme Court to back down. It will be interesting to see how Congress (broadly), and the Republicans in particular, will handle this.

    A good historical comparison, as well as voiced curiosity on how this will be received by Congress and the Republicans…I’ll add, Romney. Like James already stated, Rubio was formulating a similar idea. So, there are some on the right who are seeing this issue with a broader spectrum lens than the typically voiced mantra, attributed to the right, of ‘deporting them all.’

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  72. MBunge says:

    @James Joyner: “So, Congress had very recently expressed its will that the law be enforced and the president is telling them to screw off. To me, that’s a very dangerous precedent despite my preferring this policy outcome.”

    That may be true, but persistent irresponsiblity/irrationality in one branch of government will inevitably provoke extreme reactions from the others. Obama has done virtually everything he can do to try and coax Congress into dealing with immigration, to the point of drawing fire from his supporters, and he’s got nothing back. Expecting him to NOT eventually give up and look to his own political advantage is foolish.

    Mike

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  73. @Doug Mataconis:

    Well, Ohio will turn on jobs, and it is possible Romney could make work visas a jobs negative … maybe.

    Realistically though, tariffs near zero matter more to Ohio jobs than work visas. It will be interesting to see how Romney plays that. I’ve heard things in both directions, that Romney faults Obama for not being free trade and free market, and that Romney wants to punish China. Perhaps that cognitive dissonance will hold past the election …

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  74. J-Dub says:

    @James Joyner: Do you advocate that law enforcement actually enforce every law on the books? Let’s face it, there is not enough time nor enough resources to enforce all laws. They have to choose which laws they are going to enforce and to what degree. They just don’t normally call a press conference to announce it.

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  75. jan says:

    Mattb,

    In perusing this thread, I give you kudos for some of the most non-partisan responses to this thread’s topic. They are what I would call ‘centered’ and addressing the cogent issues in a very fair, thoughtful manner.

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  76. mattb says:

    Well stated @jan.

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  77. mattb says:

    FYI… the “well stated” was for @Jan’s summation of the broader issue, not her compliment (which apparently was posted while I was reading and responding to her post. Don’t get me wrong, I think the compliment was well stated to, but even I don’t have a big enough head to normally say that sort of thing out loud.)

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  78. Doubter4444 says:

    Taken to an extreme, that argument leads us to it doesn’t matter if someone once “got away with” murder as long as they were a good person after the murder happened.

    Yeah well, I play that too: You get a ticket for going 2 miles over the speed limit, while around you people are going along at 50 over the limit.
    No difference? Only in degree?
    Maybe, but as Dr. Taylor said earlier, enforcing the laws against the super speeders is more important an the little fish. Right?

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  79. michael reynolds says:

    Obama is begging Republicans to freak out over this.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  80. James Joyner says:

    @john personna: Presidents don’t get to fail in their attempts to change the law in Congress and then just ignore the law so that it aligns with their preferences. I repeatedly called out Bush for ignoring the will of Congress.

    I think this is more than a simple case of administrative discretion, which I’ve excused in cases where Obama has been excoriated by Republicans on the grounds that it’s just how our system has evolved. This strikes me as a big deal.

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  81. @James Joyner:

    You keep saying “ignore the law” when Doug and Steven agree with me that he’s found a way to perhaps drag his feet, but stay within the law.

    If he really wanted to “ignore the law,” he’d halt arrests, right?

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  82. John,

    You missed my point. The fact that the discretion granted by existing law makes this legal and constitutional doesn’t mean that I think it is at all proper for a President to enact by Executive fiat that which has been explicitly rejected by Congress. It may be legal, but it’s also improper.

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  83. jan says:

    @mattb:

    As you well know, we do hold different stances on a platter of issues. However, it’s comforting to read posts, where ideas and sentiments seem to momentarily sync, giving common ground to people like us. Your comments stood out, because they were so focused on the complexity of the problem, without any partisan food coloring added.

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  84. @Doug Mataconis:

    Heh, James was not saying “improper.” He said “abrogating his Constitutional oath here.”

    To paraphrase Michael, “Obama is inviting hyperbole.”

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  85. @Doug Mataconis:

    It may be legal, but it’s also improper.

    I honestly don’t have a final opinion on this entire move, as I feel I do not have the full facts as yet. Having said that, how does one determine, save for personal preference, when something is legal but not proper?

    In a technical sense, what else is there but legal or illegal?

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  86. James Joyner says:

    @john personna: At some point, it’s a distinction without meaning. He’s not “dragging his feet” here, but simply choosing to ignore the law with regard to a particular swath of illegal aliens. And advertising the fact.

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  87. @James Joyner:

    Oh yeah, compared to this the Trail of Tears was chicken feed.

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  88. @mattb:

    So, for example, when we hear those occasional stories about government beuracrats fining children for running lemonade stands without a business license or a restaurant permit, you’re in favor of that?

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  89. Steven,

    In this case, it strikes me as very easy. When a piece of legislation is rejected by Congress it is improper for the President to enact it by other means even if the law permit him to do it.

    The other example of this that comes to mind is when Congress explicitly rejected bailout out GM and Chrysler in December 2008 and President Bush turned around and did it anyway. Legal, because of the discretion granted to the Treasury under TARP but, in my opinion at least, improper because of the way it flouts the will of the representatives of the people.

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  90. Well, John, I would call it a pretty serious stab at the Separation of Powers. It’s not the President’s role to do things that Congress ought to be doing, regardless of the reasons Congress is failing to act.

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  91. jan says:

    @michael reynolds:

    Obama is begging Republicans to freak out over this.

    It will only be to their detriment if they do, especially if it is done in a way that exaggerates or inflames an already sensitive issue. If they chose to build on in, though, proposing their own reasonable solutions to resolving the residency of illegals here (perhaps, embracing or configurating a plan similar to Rubio’s), they might be able to turn this presidential order into an asset.

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  92. MBunge says:

    @Steven L. Taylor: “In a technical sense, what else is there but legal or illegal?”

    Well, did those Secret Service Agents break any law when they consorted with prostitutes in Columbia? There have always been ethical and moral standards that exceed mimimum legal requirements. The problem is that the enforcement of such standards today no longer follows any reasonable course. Secret Service Agents who consort with prostitutes may lose their careers, but a U.S. Senator who consorted with prostitutes in clear violation of the law gets off scot free.

    Mike

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  93. @Doug Mataconis:

    You guys had a stronger case on Libya.

    I believed then that you were technically correct that Obama had acted extra-constitutionally, but that in the long run, no one would care.

    Again, compared to that, small potatoes.

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  94. @Doug Mataconis: But, then, “improper” is really just a category of preference, yes?

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  95. steve says:

    For the impeachment advocates, is this a high crime or a misdemeanor?

    Steve

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  96. @steve:

    Neither

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  97. @MBunge:

    Secret Service Agents who consort with prostitutes may lose their careers, but a U.S. Senator who consorted with prostitutes in clear violation of the law gets off scot free.

    This is true in many cases (and voters end up deciding those issues, ultimately).

    However, I don’t see the analogy to what I am asking/what Doug has proffered.

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  98. @Steven L. Taylor:

    To the extent one considers the Separation of Powers and the battle against the Imperial Presidency a preference, I suppose so.

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  99. @john personna:

    Just because the President can do something, that doesn’t mean he should. And, just because he can do it, that doesn’t mean that it shouldn’t be criticized as yet another example of the assumption of yet more power by the Imperial Presidency

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  100. There is a long list at the State Department’s website: Types of Visas for Temporary Visitors

    My presumption would be that the Obama administration found a way to shoe-horn the people they had in processing who fit those criteria into one of those categories.

    The President is a lawyer, after all. Why “abrogate” when he can finesse?

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  101. @Doug Mataconis:

    Dude, does James know you are walking back his argument?

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  102. But there are only certain visas that allow people to work here legally. I’m not sure what basis the White House has for granting these people work permits not withstanding its discretionary authority under the immigration laws

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  103. John,

    I’m making my own argument. I don’t speak for anyone else

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  104. @Doug Mataconis:

    Well, if you’re not sure …

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  105. @john personna:

    Again, whether its legal or not is not the problem I have. The problem I have is that Obama is repeating what his predecessors have all done and enhancing the power of the Presidency by ignoring the express will of the representatives of the people.

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  106. PD Shaw says:

    That’s part of the problem with Prof. Taylor’s initial question about “work permits”? Are we talking about “work visas” or something else? Is Obama giving young people educated in our schools the opportunity to pick tomatoes in Alabama?

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  107. @Doug Mataconis:

    To the extent one considers the Separation of Powers and the battle against the Imperial Presidency a preference, I suppose so.

    I must confess, this kind of answer drives me nuts because it is a nonanswer as it is an attempt to cloak preferences in high-minded lingo without actually answering the question.

    Ultimately, in terms of policy, the issue is legality or illegality and proper/improper is about normative preference (unless there is a definition that I am missing that you are using–which was my question).

    If it is not about preferences, then surely there is a standard that can be discussed that deals with how to categorize “proper” and “improper”, yes?

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  108. Nikki says:

    I think James is going completely overboard in his reaction to this. Those targeted by this Executive Order came to this country illegally as children brought over by their parents. They had no say as to whether they wanted to be here or not. Why should these children/students/adults continue to exist as people without a country to call their own?

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  109. Steven,

    I don’t disagree, and I am saying that I find nothing proper about a President who ignores the express will of the legislature and uses Executive fiat to achieve (some of) what he cannot achieve legislatively. It may be legal, but that doesn’t make it right.

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  110. Nikki,

    The policy is irrelevant, the means to enact it are where the problem arises

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  111. @Doug Mataconis:

    I was flip with the Andrew Jackson and Cherokee example, but it shows “Imperial Presidency” at its worst, doesn’t it?

    180 years ago?

    I said above that Obama was inviting hyperbole. Surely this kabuki that, until yesterday, the execution of the constitution was perfection is hyperbole.

    The sad truth is that we’ve been bending laws before their ink was dry, going back to the beginning.

    If you want to make this big, make it actually big in that context. Don’t feign innocence.

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  112. PD Shaw says:

    I might use the word “improper” not illegal to describe conduct which unsettles existing expectations about how institutions are supposed to work and the procedures they are expected to follow. It would not be used to describe a policy itself.

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  113. Dean says:

    @PD Shaw: “In Illinois, when the governor sought to expand healthcare coverage for children, and the legislature refused to pass it, he did it anyway. And then he was impeached for it.”

    Only you, Rod Blagojevich and 1 IL. state legislator believes Blago was impeached for trying to help families. The House vote to recommend impeachment was 114-1 and the Senate vote for impeachment was 59-0.

    Blagojevich was impeached for trying to shake down everyone in his path, including a children’s hospital. His attempt to help families, regardless of how worthy it might have been, was nothing more than another effort on his part to cover up the damage he was doing in Illinois.

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  114. Kinky Beats says:

    @jan:

    Well said, Jan.

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  115. @Doug Mataconis:

    I am saying that I find nothing proper about a President who ignores the express will of the legislature and uses Executive fiat to achieve (some of) what he cannot achieve legislatively. It may be legal, but that doesn’t make it right.

    Here’s the problem with your position as I see it (and it gets to my basic point): if something is legal it is, by definition, within the “express[ed] will of the legislature” as the only expression of the legislature that matters is in what they legislate. Anything else is implication or unofficial. If the law allows an action, then whatever else “the legislature” may have wanted is moot, yes?

    If the law allows what Obama is doing (and, as noted, I have questions about that) then it is, by definition, within the expressed will of the legislature.

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  116. PD Shaw says:

    @Dean:Violating the separation of powers by unilaterally expanding a State program in defiance of a legislative defeat was one of the impeachment counts found against Blagojevich.

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  117. Steven,

    So legislation X is presented to the legislature and is rejected. Subsequently, the President uses his authority, much of which has been assumed extra-legally over time by his predecessors with the unfortunate acquiescence of congress, to implement in part some of things that X would have made part of the law of the land and there’s nothing improper about that?

    We don’t live in a one-man rule state, but things like that come dangerously close to it, IMO

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  118. @john personna:

    Obama is merely following in the footsteps of his predecessors, this is true.

    That doesn’t make it any less improper.

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  119. @Doug Mataconis: Except that calling what Obama has done ex-legislative implementation of the DREAM Act is actually inaccurate.

    The question are:

    1. Does the president have the power, as chief executive officer of the US, the power to allocate resources in terms of which laws are enforced and to what extent? The answer is quite clearly yes.

    2. Does the president have the power to order work permits for a two year period as per the announcement even to illegal immigrants who fit a certain profile? I have no immediate clear answer on this one.

    Ultimately this comes down to an issue of what the law says (i.e., the expressed will of the legislature).

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  120. @Steven L. Taylor:

    Again I am not saying the President lacks legal authority here. However, given that he has taken virtually no steps since entering office to try to get Congress to act on this (in all honesty the Administration made almost no effort to get the DREAM Act through Congress) and Congress rejected the bill he did support, I don’t think it was right for him to exercise that authority to, in effect, thwart the will of Congress and bypass the lawmaking process.

    I am, in other words, making a distinction between the legal arguments and the normative one.

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  121. al-Ameda says:

    @billd:

    so simply elect romney and let the deportations begin!

    You mean, ‘let the deportations continue.’
    The Obama has deported 400,000 illegals.

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  122. @James Joyner:

    We have a representative form of government. Congress has passed a plethora of laws on the subject over the span of 200 plus years. You don’t have a personal veto.

    No, but neither do you have leave to imply my support by describe decisions being made with the support of a particular groups as having been the actions of the country as a whole.

    The “reward” is being allowed the benefit of working and living in the United States that those who follow our laws are being denied until such time as they work their way through our system and get to the head of the line. Given the number in that line, that’s a hell of a reward.

    There is no line. Unless you meet certain criteria, which most of the people we deport do not, you cannot legally immigrate to this country no matter how long you wait. You either have to be rich, have family already here, or have someone willing to pay a whole of money to get you here. The idea that any person can become an American if they’re just willing to be patient is a monstrous lie.

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  123. BTW, if we’re going to concern troll about executives overstepping their bounds, it seems to me that this:

    http://www.abc15.com/dpp/news/region_phoenix_metro/central_phoenix/video-sheriff-arpaio-reacts-to-illegal-immigration-change

    Should be far more of a concern than what Obama’s doing.

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  124. mattb says:

    @Stormy Dragon:

    So, for example, when we hear those occasional stories about government beuracrats fining children for running lemonade stands without a business license or a restaurant permit, you’re in favor of that?

    (Discosure: This happened to my Boy Scout troop for selling popcorn too close to a government building — a post office — though I wasn’t present when we got evicted).

    Ultimately I must answer: with a provisional yes.

    Here are the provisions:
    Do I think it’s a waste of law enformcement resources? Yes
    And most germane to the topic, if either law enforcement or the courts has the legal discretion to suspend or otherwise wave the fines, then they should do so.

    But if the courts or law enforcement officers have not been given that leeway then they can’t take it.

    That might seem like a ridiculous answer, but the fact is if a stupid law is on the books, it is imperative that it should be removed and the sort of conflict that you describe is exactly the sort of confrontation that leads to bad laws being repealed or otherwise changed.

    This gets back to DADT or state sodomy laws. You can choose not to enforce them, but the law remains on the books and can later be used against you. The right way (though it sucks) to handle the situation is to change the law, not simple decide not to enforce it.

    Now this, of course, happens not in theory, but in the real world. So you can’t equally enforce all laws as Steven and others on the thread have pointed out.

    But prioritization of resources is entirely different than deciding not to enforce a law because you don’t like it (unless of course your position is either explicitly or implicitly granted the power to make that sort of decision).

    In the end Stormy, I come down on the side of the law because I ultimately want the law there to protect me. As has been pointed out many times, when laws cease to have meaning in a broader framework, people’s rights get trampled fast.

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  125. Stormy,

    I have long considered Arpaio a jerk. However, he’s a jerk with far less power than the President of the United States

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  126. mattb says:

    As I think the post might have been filtered, to the lawyers and law scholars here, quick (and relevant) question:

    What precedent is there around Signing Statements and Executive Orders? It seems like that’s a section where, despite the bluster, there have been few legal challenges that have gone through the Federal Courts on these topics. That, to one degree or another, muddies the waters quite a bit.

    It seems like the answers here potentially shift the question in different ways. It could move it from a case of is it legal/constitutional to “just because you can, doesn’t mean you should…”

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  127. @mattb:

    As has been pointed out many times, when laws cease to have meaning in a broader framework, people’s rights get trampled fast.

    On this we agree. But in my mind, if you’re enforcing unjust laws out of some loyalty to procedure purely for the sake of procedure, then the laws already have lost meaning in a broader frameworks. If a law is defensible, it must be defensible as a result of it’s contents, not purely because it is a law.

    I suspect you are a legal positivist, while I am more of a natural law person.

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  128. @Doug Mataconis:

    Perhaps jurisdictionally, but I find Aripo’s act of comission far worse than Obama’s act of omission.

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  129. He’s being sued by the DOJ for civil rights violations, is he not? So, if there’s merit to the claims that will be dealt with

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  130. PD Shaw says:

    @mattb: I think the most apt analogy were the military commissions set up by the Bush administration (Military Commission Order No. 1) to try the detainees at Gitmo. The Supreme Court found that the commissions conflicted with legislation (Uniform Code of Military Justice) in several respects and the Bush Administration should work with Congress to pass mutually agreeable uniform laws. It was described as not an act of judicial-intervention, but democracy-promoting:

    …Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. … Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine — through democratic means — how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

    I suspect the question of whether there is a conflict between Obama’s actions and legislative authority will depend upon the language of the law, the degree of Presidential discretion in this area, and the impact of the failed legislation.

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  131. Doubter4444 says:

    The idea that any person can become an American if they’re just willing to be patient is a monstrous lie.

    That’s an interesting point.
    And one that may just fuel this argument.
    Those that think “Anyone” can come to America and make it here Vs. … well, reality, I guess.

    This is not a partisan point I’m making – it’s part of the American Ethos at this point, part of our collective conscience… but it’s not true.
    It’s very very difficult to legally emigrate to this country in 2012, without, as Stormy said, a sponsor, a family, or you are considered a refugee for political reasons. (Or really rich).

    But still, most people on either side of the divide “feel” that we are a nation that welcomes “the poor, the sick the huddled… ” – we’ve been taught it from knee high.

    Those who buy it more may feel as Dr. Joyner, that this is a big deal, and end run around a group of people patiently waiting their chance, thereby screwing them over, and overstepping the line of appropriate behavior.

    Others may think that it’s wrong to deport people that are law abiding and who have lived here decades and assimilated into society.

    By the way – to Jan (you beat me to it) – I wanted to say that while we strongly disagree on a host of issues, this one we share a commonality of purpose.
    And this thread has been remarkably free of rancor, too, which is nice.

    Thank you.

    Having grown up on a ranch and orchard in California and worked with people of dubious (if that) immigration status all my life, and had as a, and now employ, caregivers who may or may not have been fully papered, I have nothing but respect for the work they do, and for the most part, their character and morals. Get rid of the bad ones, absolutely, and quickly and without question. But the ones who work work and care and add to the better of the community, I say, find a place for them. We are a big country, we could do it. And we owe it to the Ethos I mentioned above: It’s our story to do so, it’s in our genes.

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  132. wr says:

    @Doug Mataconis: “I have long considered Arpaio a jerk. However, he’s a jerk with far less power than the President of the United States”

    Not to his mind…

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  133. mattb says:

    @Stormy Dragon:

    I suspect you are a legal positivist, while I am more of a natural law person.

    Bingo.

    And I totally agree with your broader point about how unfair the current system is (and what an effective job many do at convincing themselves it is fair).

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  134. mattb says:

    Btw @Jan, following up on another discussion, I totally think this sort of action is an example of a “fact” that one could legitimately use to argue about Obama’s Left Wing tendencies. And it’s a good example of one given his rather conservative record on accelerating the prosecution and deportation of illegal immigrants with criminal records.

    I’d go even further to call it “radical” in so much as its a real example of his using executive power to enact policy in opposition to the (in)actions of the legislative branch. This stands in stark contrast to his conservative handling of DADT (leaving it up to Congress rather than working though executive action).

    On a similarly related sidenote, I just looked into the data on Signing Statements (which I’d argue is another example of Executive Radicalism). By this point in his presidency, GWB had issued some 80+ signing statements. So far Obama has issued about 20. Still more than Senator Obama would have supported, but an example of Obama the conservative (at least in terms of some uses of executive power).

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  135. billd says:

    @James Joyner: “So, Congress had very recently expressed its will that the law be enforced and the president is telling them to screw off. To me, that’s a very dangerous precedent despite my preferring this policy outcome.”

    but in 2010 n a majority of the House passes a version of DREAM Act, a majority of the Senate votes for the DREAM act, but because of Republican abuse of filibuster rules (everything needs 60 votes?), the will of Congress arguably was thwarted.
    now the Bohner house is opposing everything Obama tries because….just because. Does this mean Obama should not do anything within his prosecututorial discretion to improve things?

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  136. PD Shaw says:

    @billd: There were at five Democrats who joined the filibuster.

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  137. PD Shaw says:

    . . . And obviously since the Senate didn’t want to vote on it, we don’t know how many supported the Dream Act.

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  138. PD Shaw says:

    @mattb: I would call it procedural radicalism. The policy itself is possibly pretty minor. But it becomes credible for non-Birthers to argue that if Obama is re-elected he will _____________________.

    a. Invade Russia;
    b. Annex the U.S. to Kenya;
    c. Outlaw exhaling carbon-dioxide;
    d. Grant U.S. citizenship to all Latin America.

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  139. But I’m far from sold that it’s the right thing to do from the standpoint of the rule of law.

    Much as their is generally a recognition that “due process” does not apply to any process regardless of its contents, I’m don’t think “rule of law” can be said to apply to just any law regardless of its contents. A refusal to turn in your Jewish neighbors or to send an escaped slave back to bondage or to colaborate with the Stazi does not subvert the rule of law, even if there are laws banning such actions.

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  140. michael reynolds says:

    It looks as if Mr. Obama timed this exquisitely well. Romney is left floundering for a non-answer (“Um. . . whatever Rubio said”) because he doesn’t want to antagonize any more Hispanic or moderate voters, and the hard right is pissed off. It’s gay marriage all over again.

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  141. Moosebreath says:

    Michael,

    True, but on the other hand, it’s a good example of the etch-a-sketch in action.

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  142. jan says:

    @michael reynolds:

    “It looks as if Mr. Obama timed this exquisitely well.”

    That’s not what I’m hearing. Pundits are saying that Obama’s reason for unfurling his immigration decree on a Friday, is because he bombed with what was to be another campaign roll-out speech on Thursday, in Ohio. So, today’s unexpected news story was to give him some cover, by quickly changing the talking head conversation to immigration, as normally, news dumps made on Friday are done so they can be forgotten by Monday. Obviously, this story is much too big and important to forget.

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  143. Racehorse says:

    What about all of the people who have been and are waiting in refuge camps to come to America legally? How about those people, Mr. Obama? I personally know of people from Africa who had to wait for a few years to get here. They lived in some sort of internment camp. They were getting away from the violence in their country. They did not sneak in here illegally and wait on some sort of amnesty program that the president is trying to pull off illegally.
    Mr. Obama just gave more states to the Republicans.

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  144. michael reynolds says:

    @jan:

    Obviously, this story is much too big and important to forget.

    Which kind of contradicts your notion of a Friday news dump.

    It’s not meant to be forgotten, it’s meant to be remembered by Hispanic voters, and it’s meant to dominate the Sunday talk shows in hopes that Tea Party crazies will attack Romney and force him to (for the millionth time) flip-flop and pander.

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  145. jan says:

    @michael reynolds:

    “Which kind of contradicts your notion of a Friday news dump. “

    I guess my comment was more a cliff note version and not clearly presented.

    The rubric normally for such a big story is to announce it at the beginning of the week, where it has a more engaged M-F time to simmer and make its way through the various news organizations. However, many are interpreting the Friday release, quickly put together and spread by a phone call from Janet Napolitano to media outlets, as being a last minute diversion away from the media talking about Obama’s terribly received ‘big’ speech on Thursday, on the Sunday news shows, replacing it with this one. This immigration story is so important that it is not likely to dim (like so many other news dumps do on Friday), and end up serving a double purpose — augmenting the hispanic vote as well as surplanting the story of Obama’s Ohio speech, so it is the one that becomes buffered by any negative over- analysis.

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  146. jan says:

    As for Romney’s response, it was tempered, and he did not shoot from the hip:

    ““I’d like to see legislation that deals with this issue,” Romney said. “And I happen to agree with Marco Rubio, as he said this is an important matter, we have to find a long-term solution.”

    He neither nixed the idea nor complimented it. It was merely a simple, diplomatic statement.

    Also, it was known that the WH was concerned about a conservative, like Rubio, coming out with a long-term ‘Dream Act,’ that might appeal to hispanic voters, literally preempting anything that Obama might do.

    Again, today’s Presidential edict, offering a brief form of relief for some, was a political act, short term (a 2-year determent), and will add very little to the real immigration problems of those who seek long term solutions towards becoming a legal worker or citizen in this country.

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  147. rose says:

    These changes shouldn”t be allowed. It is definitely a election move for votes. Only Congress should make changes to the laws. Not by one person using his posotion. To undermine the American people and the laws.

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  148. jan says:

    @rose:

    I agree about the move being political. However, immigration reform is something that is long overdue, IMO.

    I’ve posted this before, but will explain again…

    My husband and I have sponsored a father and son for citizenship since 2001. It has been an eye-opener in seeing how inept and slow the immigration process is for serious, hard working people.

    The father finally qualified for citizenship a few months ago (we celebrated the achievement). The son’s status is still pending. I talked to him about today’s new opening, in obtaining a worker’s permit for his age group, which might alleviate some of the daily stress he experiences: driving without a license, fear of deportation, not being able to freely travel anywhere.

    Non citizens literally are imprisoned in their hiding from being caught.

    This young man feels that people who serve in the military, or are self reliant (not living on welfare), going to college, or are working should be considered as good prospects for citizenship. He and his father are not here to take money home, but are here because they are fully rooted here.

    I agree. How could I not, as he is such a great addition to this country?

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  149. john personna says:

    @jan:

    Romney’s answer sounds reasonable – but will it split the right?

    Is the anti-immigration right still there?

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  150. jan says:

    @john personna:

    It could split the right, as there is an unmovable fraction on the right who only sees one option, which is deportation. The rigidity is sad.

    Again, to see the people caught in the middle, who are the illegal’s wanting only a legitimate home here, being bantered around by both the right and the left in their political battles, is madding to me.

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  151. mattb says:

    FYI … My resident legal scholar did some checking and came up with the fact that in 1990, GHW Bush, in the wake of Tiennamen Square, issued a similiar executive order essentially deferring the deportation of Chinese Immigrants, including those who had entered the country illegally, until 1994.

    So there is some precedent for this action.

    http://en.wikipedia.org/wiki/Executive_Order_12711

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  152. jan says:

    @john personna:

    To further respond to your question, I’ve read a blog owner (on the right), who stressed if Romney capitulates to a Rubio approach to illegals, he would not vote for him. I guess that would help who you are supporting.

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  153. jan says:

    @mattb:

    But, don’t you think that, in that scenario, there was an emergency impetus to have such an executive order exercised, rather than the one that Obama just did, which seemed to be instigated more to save his own political hide?

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  154. michael reynolds says:

    @jan:

    He neither nixed the idea nor complimented it. It was merely a simple, diplomatic statement.

    More mush from the human Etch-a-Sketch. He’ll wait until Fox and Limbaugh tell him what his position is and then adjust accordingly.

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  155. jan says:

    @michael reynolds:

    More mush from the human Etch-a-Sketch. He’ll wait until Fox and Limbaugh tell him what his position is and then adjust accordingly.

    I doubt it, Michael. There was actually no response from Romney that would have pleased you.

    A non-committal one, which did no damage to anyone, is jeered by you.

    However, if he had heatedly rejected it, then he would have been seen as a tool of the right and a racist.

    If he had totally agreed with it, he would have been seen as inauthentic.

    So, you see, there is no reason to take a harsh stance, on the same day as this totally surprising announcement was pounced on the public. Romney, basically, took the right action at this time. What follows, though, will be more telling…..as to how he assesses this Presidential move of Obama, and importantly what he would have done differently if he were president.

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  156. michael reynolds says:

    @jan:

    Romney, basically, took the right action at this time. What follows, though, will be more telling…..as to how he assesses this Presidential move of Obama, and importantly what he would have done differently if he were president.

    What’s cool is that you don’t know you just validated my assessment of Romney. Romney, and you, await your programming.

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  157. Xenos says:

    @mattb:

    The issue, like it or not, is if they have entered the country illegally (circumvented the current laws), then they have already committed a criminal act — even if they are model “citizens” once they arrive.

    Actually, most people who are in the US without authorization have not violated criminal law in the process. They may be ‘illegal’, but purely as a matter of administrative law. This is actually an important and good feature of the law, because it would be much, much more difficult to process removals if the person in question had the full set of rights that arise in a criminal enforcement action.

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  158. Xenos says:

    @Doug Mataconis:

    Well, John, I would call it a pretty serious stab at the Separation of Powers. It’s not the President’s role to do things that Congress ought to be doing, regardless of the reasons Congress is failing to act.

    Isn’t that a pretty simplistic take on the Separation of Powers? If Congress abdicates on an issue (and over the last decade it clearly has in re. immigration policy) then the executive and the courts will have a lot more leeway to step on congressional toes. See, eg., the Goodrich decision on gay marriage, which followed a decade of bills about civil unions being bottled up in committee on Beacon Hill. With the apparent refusal of the legislature to even vote on the issue, the court had an opening to make the decision for them.

    Here, Obama has stayed pretty clearly within his pre-existing zone of discretion on enforcement. Issuing work permits is also clearly within the existing legal framework, as the idea is that persons allowed to remain indefinitely in the country absent a change in status should, as a matter of policy, be allowed to support themselves by their labor as they should not become welfare cases. The example of the Chinese students whose visas faced expiration after Tienanmen Square is directly on point. If these people are going to stay a while, they need to get a job.

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  159. anjin-san says:

    I doubt it, Michael Jan. There was actually no response from Romney nothing Obama could have said that would have pleased you.

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  160. superdestroyer says:

    President Obama continues to act fro the progressives (and African-American) POV that rules are for others. In President Obama’s world, if you do not like the rules, just ignore them. Environmental rules are for others. Equal employment rules are for others. Diversity is for others.

    Progressives live their lives being open hypocrites. Is it any wonder that the Obama Administration are massive hypocrites.

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  161. mattb says:

    @Xenos: Completely correct, and speaks to exactly the sort of thing that makes it hard to talk about Illegal Immigration, as most of us (myself included) are not skilled enough to talk about violations of the law without using the language of criminal law.

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  162. mattb says:

    @jan:

    But, don’t you think that, in that scenario, there was an emergency impetus to have such an executive order exercised, rather than the one that Obama just did, which seemed to be instigated more to save his own political hide?

    The reason I brought up George H. W. Bush’s similiar executive order (12711 – http://en.wikipedia.org/wiki/Executive_Order_12711 ) is that it points to an answer to the question of whether the President has the authority to single out a specific group of people and temporarily delay deportation on them.

    G.H.W.B.’s action establishes a clear precident that the executive branch has the power to do this. That helps understand if Obama has specifically exceeded the implicit and explicitly granted powers of the office. It looks like this is legal.

    Which gets us beyond questions of legality and into questions of policy and politics.

    Was this a political move? Sure. But I happen to personally agree with the general direction of the move. And there is no reason that good politics cannot also be good for the people.

    I think the idea that a political move is inherently good or bad is a really simplistic way to look at the world (and I’m saying that in a general way, don’t read it as directed at you). This is going to help a lot of people who did not commit a crime themselves and are largely victims of circumstance. I think that’s the right (moral) thing to do. I think Obama probably does as well (as I suspect Romney would/does).

    The timing is without a doubt political, but so what?

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  163. stephanie says:
  164. Jeff DeWitt says:

    OK lets put this in perspective…

    Say next March President Romney announces that due to the pain the high price of energy is inflicting on all Americans, especially the poor, he was announcing the following moves.

    1. Effective immediately the federal government will no longer be enforcing any pollution laws regulating either the coal industry or coal fired power plants.

    2. Following the precedent set by the Obama Justice Department with it’s dealings with Arizona and illegal immigration the federal government not only prohibits the states from taking any action against such polluters but will sue any states that attempt such an action.

    Romney would be doing EXACTLY the same thing as Obama is doing, so why wouldn’t it be equally legal?

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  165. @Jeff DeWitt: a major problem with your analogy is the Obama had not suspended immigration law. As such, your hypothetical is nowhere near as exactly as you as you are asserting.

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