DOJ Finds President Lacks Authority to Take Action He Took Next Day

The Office of Legal Counsel told the president Wednesday he couldn't do what he did on Thursday.

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The Secretary of Homeland Security and the Counsel to the President directed the Justice Department to investigate whether the president had the authority to take contemplated actions with regard to illegal immigrants via executive order. In a letter dated 19 November, they found he did not. On 20 November, he did it anyway.

Josh Gerson for POLITICO (“White House releases immigration legal opinion“):

The most interesting aspect of the legal advice President Barack Obama got on the immigration executive action he announced Thursday night may be what lawyers told the president he could not or should not do.

A 33-page Justice Department legal opinion made public just hours before Obama spoke concluded that he doesn’t have the legal authority to offer broad deportation relief to parents of so-called Dreamers—people who came to the U.S. illegally as children and won a reprieve from deportation in a program known as DACA that Obama created in 2012.

“As it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion,” Justice Department attorney  Karl Thompson wrote in the Office of Legal Counsel opinion.

The opinion also reveals, in a footnote, that Justice Department lawyers informally raised concerns about Obama’s initial 2012 DACA program before it was enacted.

Thompson’s legal memo about the new immigration initiatives warns the president against straying into areas untethered to policies or priorities Congress has set through legislation. “The Executive cannot, under the guides of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences,” Thompson wrote. “An agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.”

A senior administration official said Thursday lawyers concluded that actions like protection for parents of dreamers were “not legally available” to the president, largely because it would be building one set of executive actions upon another.

On the one hand, kudos to the administration for promptly releasing the memo. The norm in situations where OLC presents adverse findings is to bury said findings for as long as possible. Releasing the full memo so quickly is the height of transparency and truly laudable.

It’s worth noting, too, that OLC—rightly in my view—found that the president does have the “authority to prioritize the removal of certain categories of aliens over others,” particularly in light of inadequate funding to pursue the removal of all of them. But they specifically found that “the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion” precisely because it is not tethered to existing law. Pages 6 and 7 detail what seems a perfectly reasonable understanding of the law:

[T]he Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. See id. at 833 (an agency may not “disregard legislative direction in the statutory scheme that [it] administers”). In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering. Cf. Youngstown, 343 U.S. at 637 (Jackson, J., concurring) (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”); Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (explaining that where Congress has given an agency the power to administer a statutory scheme, a court will not vacate the agency’s decision about the proper administration of the statute unless, among other things, the agency ”‘has relied on factors which Congress had not intended it to consider'” (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).

Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, ”‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)); see id. (noting that in situations where an agency had adopted such an extreme policy, “the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion'”). Abdication of the duties assigned to the agency by statute is ordinarily incompatible with the constitutional obligation to faithfully execute the laws. But see, e.g., Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994) (noting that under the Take Care Clause, “the President is required to act in accordance with the laws—including the Constitution, which takes precedence over other forms of law”).

On the other hand, it’s more than a little troubling that the president proceeded to issue the order anyway, contrary to not only the wishes of Congress and public opinion but the best legal advice available to him. As Gerson notes, the administration is operating on a different legal view than the professionals in the Justice Department:

However, that conclusion appears to have been based heavily on historical precedent as well as legal concerns. Officials said they consider Obama’s move to allow family members of U.S. citizens to receive protection from deportation to be very similar to previous moves by Presidents Ronald Reagan and George H.W. Bush, who also protected family members of individuals Congress had moved to allow to remain in the country legally.

“We were influenced by the fact that Congress already recognized the relationship between child citizens and parents as a relationship Congress wants to protect,” said the senior official who spoke on condition of anonymity.. “This was a sort of implementation of that Congressional policy as opposed to the parents of Dreamers, which would be….slightly different…We thought it was important to tie it to a Congressional policy.”

The difference in the actions taken by Reagan and the elder Bush and that taken by Obama is that the former were implementing the clear intent of Congressional law, protecting those who had fallen into the cracks of the legislation. In this case, Obama is essentially passing the DREAM Act by executive fiat.

Despite my generally supporting the DREAM Act, I find that outrageous. Indeed, as noted in the comment thread of another post yesterday, I consider this action impeachable. Note that I’m not calling for the president’s impeachment. Aside from it being politically untenable, the fact that Obama’s action comes in the wake of decades of his predecessors stretching the Constitution beyond recognition makes it difficult to argue that the duly elected—twice—president should be removed from office for continuing a trend. But this is nonetheless serves as a further and rather substantial weakening of the separation of powers.

Another president will, in the not too distant future, use this precedent to justify an action that supporters of Obama’s move will find outrageous. At that point, it’ll be too late to complain.

Some of the commentary I’ve seen on this blames Congressional Republicans for forcing the president’s hand here. While they certainly deserve criticism for a lot of things, that notion doesn’t hold water. Specifically, multiple people have argued that all that needed to happen to have avoided Obama’s action was for House Republicans to pass the bill passed by the Senate. Indeed, the president himself said that in his speech. But that stands the Constitution on its head. We pass laws in this country when they’re passed by both Houses of Congress and signed by the president. The fact that the House is predisposed not to pass anything a Democratic president proposes is frustrating; that doesn’t allow the president to simply enact said proposals by executive fiat.

UPDATE:  In the comments section, Doug correctly notes that, contrary to speculation ahead of the speech, “the plan announced last night does not extend relief to the parents of DACA children.” It nonetheless goes well beyond existing law.  As described by the lead WaPo story on the order,

Under Obama’s plan, undocumented parents of U.S. citizens and legal permanent residents would qualify only if they have lived in the country at least five years — since Jan. 1, 2010. The administration said it will be ready to begin taking applications in the spring, and that those who qualify will be granted three years of deportation relief, meaning they would be protected through the first year of Obama’s successor in 2017. It would be up to the new administration to determine whether to continue the program or eliminate it.

The new deportation protections are a year longer than they are under an existing Obama administration program, started in 2012 for younger immigrants, known as Deferred Action for Childhood Arrivals (DACA).

Officials said that the DACA program also would be revised to provide three years of relief and that they would change the date by which DACA applicants must have arrived in the United States from June 15, 2007, to Jan. 1, 2010, to conform with the program for parents.

Many of those who are granted administrative relief will be eligible to get Social Security numbers and work permits, officials said.

Administration officials also said the president’s new policies would create visas for immigrants who can show that they are investing economically in the United States and for workers in some high-tech fields.

I don’t see how this is anything other than Obama enacting essentially all of the DREAM Act by fiat.]

UPDATE 2:  Walter Dellinger, who served as acting Solicitor General under President Clinton, cites the same memo and finds no problem with Obama’s decree.

[T]he idea that the immigration plan just announced by President Obama is a lawless power grab is absurd. As the Justice Department legal analysisthat was just released amply demonstrates, much of the advance criticism of the president’s action has been uninformed and unwarranted. The opinion is well-reasoned and at times even conservative. The president is not acting unilaterally, but pursuant to his statutory authority. Wide discretion over deportation priorities has long been conferred on the executive branch by Congress, and it is being exercised in this case consistent with policies such as family unification that have been endorsed by Congress.

Even though the action is breathtaking in scope, there is nothing legally remarkable about what the administration is doing, or the legal analysis supporting it.

[…]

As Eric Posner, who served in the Office of Legal Counsel under the first President Bush, notes, the president “is just doing what countless Congresses have wanted him to do”—setting priorities for deportation enforcement.

Let’s be clear about what the administration has not done in this opinion. No one has been granted “amnesty,” either literally or functionally. And no precedent has been set for this or any future president to act unilaterally in disregard of acts of Congress. On the contrary, the legal opinion rejects a second proposed exercise of discretion—deferring deportation of the parents of “Dreamers”—that Justice concluded cannot be said to carry out priorities established by Congress.

But that doesn’t address the portions of the opinion that I’ve quoted above.  Obama is going well beyond simple discretion in taking action that Congress has ordered him to execute; he’s deciding to ignore portions of existing law and act as though an unpassed law had been passed.  Dellinger continues:

In cases such as Heckler v. Chaney (1985), the Supreme Court has repeatedly emphasized that where Congress has not provided guidelines for executive enforcement, the determination of enforcement priorities is within the “special province of the Executive.” This is especially clear in the area of immigration. As the court recently noted in Arizona v. United States (201w), some of the discretionary deportation decisions the executive makes are appropriately based on general policy considerations, such as concerns implicating foreign affairs.

In approving the lawfulness of part of the proposed deferred action, the opinion released Thursday night from the Justice Department’s Office of Legal Counsel, or OLC, is careful to reaffirm that officials may not abdicate their statutory responsibilities. In particular, the opinion states that Congress’s endorsement of certain deferred-action programs does not mean that such programs can be extended to any class of aliens. The proposals were carefully vetted to ensure that the expansion of deferred action to the new categories was consonant with congressional policy.

But note that the portions of the OLC memo that I’ve quoted are also based on Chaney and find the opposite of what Dellinger advocates. Regardless, he argues that they were likely overly cautious:

The lawyers here were cautious. They gave approval for deferred actions for parents of citizens and lawful permanent residents, finding that Congress had demonstrated support for permitting people who are lawfully in America to be united with their parents, spouses, and children. They did not, however, believe that they could approve a similar program for parents of those who are in the United States under the deferred action for childhood arrivals, or DACA, program. Because the Dreamers remain in the country based on discretion, not on the basis of a legal entitlement, OLC reasoned that without a family member with lawful status in the United States, there was not the same grounding in congressional policy to justify classwide relief.

Ironically, if anything could be criticized in the administration’s legal opinion, it would be that the reasoning for not permitting deferred action for Dreamer parents is somewhat thin. At the end of the day, the legal concern seems to be that approving deferral in the case of Dreamer parents would suggest the absence of a limiting principle: If relatives of children who are not themselves lawful residents are permitted temporarily to remain, what about relatives of relatives of relatives? The program approved by Justice is more soundly grounded in a family connection with a child who is a citizen or a lawful permanent resident.

He points us to a forthcoming posting by Marty Lederman that has since posted.  It’s extensive and mostly addresses hysterical arguments about “amnesty” and “monarchy” that I’m not making. Germane to my concerns, however, he argues:

1.  It’s not “unilateral” executive action.  Yes, of course the President has acted without any new statutory enactment, and his initiative was made necessary only because of intransigence in the House that prevents a vote on more far-reaching immigration reform (see Point 9, below); nevertheless it is important to emphasize that the new DHS enforcement priorities and deferred action status policy are being promulgated pursuant to statutorily delegated discretion.   See especially pages 4-5 of the opinion of the Office of Legal Counsel.  And OLC’s ultimate conclusion is that the new initiative is “consonant with congressional policy embodied in the [Immigration and Nationality Act]” (p. 24).  On a first read, OLC’s analysis of the scope of DHS’s statutorily conferred discretion, and how it has historically been exercised, appears to be solid, careful, measured and (as explained below) limited.  Whether or not OLC is correct in all of the particulars of its analysis, however—a question that, as mentioned above, I’ll leave to others who have greater expertise than I do—the important point is this:  What is at issue is simply a question of statutory interpretation, about the discretion that Congress has conferred upon the Secretary of DHS.

But, as I’ve already noted, pages 6-7 put some rather strong caveats on that argument.

2.  It’s not an example of constitutional “monarchy,” or a replay of Bush Administration claims of preclusive executive authority.  Indeed, it’s not an exercise of constitutional “executive power” at all:  The President and Secretary of DHS are not invoking any Article II authority, let alone an authority to override or disregard statutes.  (The OLC opinion does say (p.4) that the discretion that Congress is presumed to have conferred upon the Executive is “rooted” in the President’s constitutional duty to take care that the law is faithfully executed:  The point of invoking the “Take Care” Clause, however, is that implementing such enforcement priority decisions is “faithful” to the laws Congress has enacted.)

But the memo likewise concludes that much of the action contemplated and some of that taken goes beyond the “Take Care” discretionary authority.

3.  It does not “cut out Congress”—indeed, it relies upon statutory authority.  Nor does it contradict what Congress has prescribed.  Neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme—to the contrary, OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on enforcement discretion that the agency would be obliged to follow.  Moreover, and of great significance, OLC specifically concludes that, because enforcement priority decisions must be “consonant with, rather than contrary to,” Congress’s policy decisions as reflected in the governing statutes (pp. 5, 20), it would not be permissible for DHS to afford deferred action status to one category of aliens that the agency had proposed to cover (parents of children who have received deferred action status under the so-called “DACA” program):  Offering deferred action status to such aliens, OLC opined, would be unlawful because it would “deviate in important respects from the immigration system Congress has enacted and the policies that system embodies” (p. 32).

But, again, this stands the Constitution on its head, arguing that the president can simply ignore large swaths of existing law unless Congress specifically passes a law—presumably, by a veto-proof supermajority—overturning his order.

Dellinger and Lederman are right on the larger point that presidents have carved out enormous discretionary power over the years and that the courts have allowed much of that to slide. That’s why I ultimately don’t support impeachment here. But I nonetheless believe Obama’s order has further weakened our system of checks and balances and, indeed, the rule of law.

FILED UNDER: Borders and Immigration, Law and the Courts, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. I’m confused about what Gerstein is trying to say here.

    Yes, it’s true that the OLC does say in the memo that extending relief to the parents of DACA children would probably be beyond the President’s authority, but, the plan announced last night does not extend relief to the parents of DACA children:

    Despite intense lobbying by immigrant-rights groups, the action will not cover parents of DREAMers, or DACA beneficiaries. A senior administration official said that after an exhaustive review of the White House’s legal options, “we made a determination that the law essentially did not support that. … By executive action he can only do so much.”

    On the two categories to whom relief is being extended — an expanded population of DACA children and the parents of children who are citizens under the 14th Amendment — the OLC memo reaches quite different conclusions.

    That being said, as I noted in my own post this morning, I have the same Separation of Powers concerns that you express, although I doubt that anything that has been done here would likely be found to be unconstitutional if anyone who actually had standing to challenge the actions in Federal Court managed to get the question before a Federal Judge.

  2. Ashton says:

    I think you’re conflating two categories of parents. First, there are illegal immigrants who are the parents of American Citizens. Second, there are illegal immigrants who are the parents of other illegal immigrants who were granted a reprieve from deportation under the DACA.

    The enforcement action last night created an amnesty for the first group (parents of citizens), but (just as the memo recommended) no action was taken on the parents of DACA individuals. Those individuals might still qualify for a reprieve for other reasons (they may be a second child who is a American citizen for instance).

    The article you linked says as much: “Obama is making something of a show of not granting the Dreamer parents formal deferred action status.”

  3. bill says:

    @Ashton: so the “anchor baby” thing has more rewards now, awesome.

  4. C. Clavin says:

    It’s important to note that Bush/Cheney got legal support for their torture program from the DoJ.
    You’ll have excuse me for not taking this too seriously.

  5. sam says:

    @James

    It nonetheless goes well beyond existing law.

    Does it? There is some argument that it does not.

    A principal feature of the removal system is the broad discretion exercised by immigration officials…

    Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. [ARIZONA v. UNITED STATES 641 F. 3d 339 (June 25, 2012), Justice Kennedy writing for the Court]

    I have a question for Doug. The 1986 law, under which President Bush shielded 1.5 million illegal aliens from deportation, granted the president such power where its exercise would “assure family unity” — which, as I understand it, is pretty much what President Obama is trying to achieve here. Is that law still governing? If it’s still on the books, doesn’t it govern this case?

    The explicit language is:

    (i) I N GENERAL.—Except as provided in clause (ii),
    the Attorney Greneral may waive any other provision of
    section 212(a) in the case of individual aliens for
    humanitarian purposes, to assure family unity, or
    when it is otherwise in the public interest.
    [100 Stat. 3398 Public Law 99-603 November 6, 1986]

  6. SKI says:

    So to recap: Something POTUS didn’t do would be illegal if he did do. Got it.

  7. al-Ameda says:

    UPDATE 2: Walter Dellinger, who served as acting Solicitor General under President Clinton, cites the same memo and finds no problem with Obama’s decree.

    [T]he idea that the immigration plan just announced by President Obama is a lawless power grab is absurd. As the Justice Department legal analysisthat was just released amply demonstrates, much of the advance criticism of the president’s action has been uninformed and unwarranted. The opinion is well-reasoned and at times even conservative. The president is not acting unilaterally, but pursuant to his statutory authority. Wide discretion over deportation priorities has long been conferred on the executive branch by Congress, and it is being exercised in this case consistent with policies such as family unification that have been endorsed by Congress.

    Obviously, Walter Dellinger disagrees with the DOJ staffers on this.

  8. Ron Beasley says:

    But I nonetheless believe Obama’s order has further weakened our system of checks and balances and, indeed, the rule of law.

    While I agree that this has weakened our system of checks and balances the real fault does no lie with the POTUS but the totally dysfunctional congress and the weakest and most incompetent speaker of the house ever.

  9. grumpy realist says:

    I’m really trying to figure out the end game here. President Obama doing ANYTHING (even if it’s been something that has been re-enacted elsewhere under a Republican) immediately generates howls and curses and threats of impeachment from the other side. So is this as case of President Obama deciding “well, I’m going to get hanged for a lamb, anyway–might as well go after a sheep while I’m at it” ?

    Or is this one of the chess moves he makes which ends up with the Republicans with egg all over their faces?

    And why poke the Republicans on THIS issue, rather than any other? Does President Obama have the belief that this is the most important issue confronting the US at present? Or is it a case of self-sacrifice, throwing himself out to potentially be impeached, figuring that fighting for Hispanics will get them voting Democratic for generations to come, especially if the Republicans react as everyone expects? (In other words, California redux.)

    Would appreciate some analysis from the rational posters here, as I’m honestly scratching my head over this.

  10. C. Clavin says:

    @grumpy realist:

    And why poke the Republicans on THIS issue, rather than any other?

    I think it’s the timing more than the issue.
    The last election of his Presidency is over. The gloves are off.

  11. LaMont says:

    @grumpy realist:

    .I honestly believe the President was intent on acting before the election this year and had some spineless Democrats not asked him to hold off, he would have. I believe Pres. Obama began his threats back in July. Both Republicans and Democrats were saying it was the right thing to do since January 2013. I believe Pres. Obama did it because he thought it was ultimately the right thing to do. The grievance it is causing the GOP is bonus.

  12. ernieyeball says:

    1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    USCon Amendment 14

    @bill: You have made it clear that there are some persons you don’t like. Anyone reading your comments knows that.
    The United States Constitution reads “All persons born…in the United States…are citizens of the United States…”
    Your personal bigotries be damned.

  13. JKB says:

    I like the assumption that Hispanics are ignorant and will dutifully vote Democratic for generations. This action is ironic given many of those who came here illegally did so to escape tin-pot dictators and political classes with no belief in the rule of law. Now, Obama has shown that here in the land of opportunity, we can also have arbitrary actions by wanna be “strongmen” with no thought to equality under the law or the rule of law. Nice.

    But also, those who came here illegally were looking for a better life, not necessarily servitude to yet another party machine. They come from a culture that does not support gay rights and, being very traditionally Catholic, aren’t your strongest supporters of baby killing abortion. Many are well versed in having to pay off politicians and law enforcement so the Democrats have that going for them.

  14. stonetools says:

    @Ron Beasley:

    To be honest, since 2009 the number one item on the Republican Congress’s agenda has been to stop Obama from doing anything. They’ve done that pretty well.
    The problem here is that they can’t do anything else. So far as I can tell, they fall into conflict when they try to do anything positive. That’s not Boehner’s fault so much.

  15. Ebenezer_Arvigenius says:

    @grumpy realist: If you want a cynical view: the fact that the deferral is for three years (i.e. one year longer than his time in office) and can be cancelled by his successor at any time creates quite an incentive to go out and vote for someone who won’t cancel the thing (i.e. the democrat contender).

  16. michael reynolds says:

    @JKB:

    This action is ironic given many of those who came here illegally did so to escape tin-pot dictators and political classes with no belief in the rule of law.

    Yeah, Jack already did the cut-and-paste regurgitation of this meme. Like you, he rather missed the point that if it were true we’d expect Latinos to be outraged at this executive action.

    African-Americans are also not terribly liberal on social issues, but reliably vote Democratic because your party makes clear that they despise black people. Now they’re making clear that they despise brown people. The electoral fall-out is entirely of your making.

  17. grumpy realist says:

    @Ebenezer_Arvigenius: But wouldn’t that only get the children of these people (said children being US citizens) to the polls? After all, their parents can’t vote—um?

    Unless it’s a double-reverso calculations–that the Republicans are going to go so nuts that they’re going to piss off the entire Hispanic population, period, who will then vote Democratic by default.

    (Witness the number of posters we see even on this board squawking about getting rid of “anchor babies.” )

  18. Ebenezer_Arvigenius says:

    @grumpy realist: To quote Chait.

    The GOP primary will remorselessly drive its candidates rightward and force them to promise to overturn Obama’s reform, and thus to immediately threaten with deportation some 5 million people — none of whom can vote, but nearly all of whom have friends, family, co-workers, and neighbors who can.

    The idea of politics as welfare maximising has always struck me as idiotic. Voters are mainly moved by their self-image. Republicans like to think of themselves as resourceful, rugged and independent while Democrats tend towards a “there but for the grace of god” compassion approach.

    So we get off things like 60-something welfare kings and queens advocating for less handouts on the one hand and people like our own Michael Reynolds or Michael Bloomberg advocating for a better low-income safety net and higher taxes on the other.

    So whether they can ote is of less importance than whether a theoretical Democratic voter would feel bad about them being deported.

  19. aFloridian says:

    @Ebenezer_Arvigenius:

    The idea of politics as welfare maximising has always struck me as idiotic. Voters are mainly moved by their self-image. Republicans like to think of themselves as resourceful, rugged and independent while Democrats tend towards a “there but for the grace of god” compassion approach.

    This is very true. What gets me most about a lot of my fellow Republicans, and it’s precisely the sort of problem that, as another poster says, conveys the message that the party doesn’t care about minorities is the grating smug self-congratulatory “by-the-bootstraps” mythos that so many successful conservatives (and some liberal as well, mind) build around themselves. “I did it. Me, by myself. I worked hard, and because I work hard, I became successful in whichever way I measure success (e.g., educated professional, small business owner, corporate middle-manager) and, therefore, my status serves as evidence of my own superior work ethic, intelligence, morality, and downright individualist gumption.

    It’s pretty clear why these folks reacted with outrage to Obama’s “you didn’t build that” because it directly challenges their self-congratulating identity. And it then becomes easy to disparage and discard the poor, because you become convinced that, if someone is poor, in a country where you were able to work hard and become a success, then it can only be because they lack the qualities that got you where are. Poor people – they deserve it because they are a part of a lazy, stupid, weak-willed, and morally bankrupt permanent underclass. Why should they be able to siphon off my hard work?

    And it’s definitely true that hard work still means something. I know from personal experience – I came up poor and in a highly dysfunctional home – the sort of home where many poor folks grow up and the sort of home they later create for themselves in a cycle of violence and ignorance. At the same time, I’d be lying if I said it was pure bootstrapping. Intellectual stimulation and encouragement from family and friends, scholarships, public schools, public transportation, and so forth all played a role, which too many people conveniently forget.

    It’s so hard for people in a privileged position to understand why everyone can’t just do what they did. There are so many variables, there is so much that it context-specific. This is true for illegal immigrants as well as minorities generally. Not everyone has even the opportunities I have. The world is a chaotic mix of random bad luck and unpredictable good fortune. The welfare queen narrative is particularly dirty. It’s dehumanizing and typical of the self-congratulating false truths these people thrive on.

    On the illegal immigration front, a repairman in my home recently decided to spout off for 30 minutes about his views on the world. He said, if he had his way, we’d put soldiers on the border, while simultaneously rounding up every single one of the millions of illegals and shipping them back, and then, if they try to come back across, we’d fire one warning shot and then shoot to kill. This is not an atypical view today, among a certain segment of the population. But the only rational solution has to eventually include a path to, if not citizenship, some sort of official status. These folks are here to stay. Would we still be America® if we actually did what these people want? The break-up of families and the disruption of lives through mass deportations virtually akin to Stalin?

  20. Moosebreath says:

    @grumpy realist:

    I like Kevin Drum’s take on this:

    “The upside, conversely, is potentially huge. Obama has, indeed, waved a red flag in front of congressional tea partiers, turning them into frothing lunatics who want to shut down the government and maybe even impeach him. This has already turned into a huge headache for John Boehner and Mitch McConnell, who really don’t want this to be the public face of the party. In addition, it’s quite possibly wrecked the Republican agenda for the next year, which is obviously just fine with Obama. And it’s likely to turn next year’s primary season into an anti-Hispanic free-for-all that does permanent damage to the GOP brand.

    And that’s not even counting the energizing effect this has on Democrats, as well as the benefit they get from keeping a promise to Hispanics and earning their loyalty for the next few election cycles.”

  21. C. Clavin says:

    @JKB:
    All the tirture supporters crowing about the rule of law crack me up .

  22. grumpy realist says:

    Thanks for all the comments….

    So I’ll classify this in the “making the Republicans go bat-sh*t crazy, repeat ad infinitem” –> California redux.

    So next question: does anyone think that the Republican head honchos will be able to keep the lid down on the garbage can of crazy, or are we going to see the insane running the asylum?

    (Am also keeping an eye on what’s happening in Kansas. At some point you’d think they’d start to realize that government actually does something and needs to be paid for with taxes, but I guess not. Wonder how bad it’s going to have to get?)

  23. Moosebreath says:

    @grumpy realist:

    “does anyone think that the Republican head honchos will be able to keep the lid down on the garbage can of crazy, or are we going to see the insane running the asylum?”

    Until there is a Republican President (or until the center of gravity of the Republican Party returns to within spitting distance of people like James, whichever comes first), I think the insane will rule the asylum, as there is little downside to the Party. Once the Republicans can actually pass laws and have them signed, the differences between the branches of the Republican Party will get papered over, and they will be more concerned with getting things done. Not sure if that means the moderates will get the crazies to shut up, or the moderates will pass what the crazies have been calling for, or some combination.

  24. michael reynolds says:

    @aFloridian:

    I think that whole “I did it all,” mythology it is particularly true of people in business. All they see is their own struggle – very likely a genuine struggle – and miss the fact that they are cradled within a society that provides them the laws and standards and stability and support structure that make business possible.

    One of the reasons so many “creatives” are liberals is that we know damn well that we somehow acquired a gift. Call it genes, environment, God, it doesn’t matter, if you are Jennifer Lawrence or Neil Gaiman or Steven Spielberg you know you work hard, but you also know you were dealt a pretty sweet hand of cards to play.

    The sadder part of so-called conservatives is the lower class, working people, who have a statistically negligible chance of ever rising beyond their current station and yet identify with the upper classes who by implication at least consider those working people to be failures, and specifically failures as a result of a lack of virtue. How many times have you seen someone ranting about high tax rates when they don’t make enough to pay taxes and almost certainly never will? It’s the forelock-tugging instinct you’d see in Russian peasants who would call out to the Czar right before the Czar’s Cossacks rode them down.

  25. DrDaveT says:

    @JKB:

    Now, Obama has shown that here in the land of opportunity, we can also have arbitrary actions by wanna be “strongmen” with no thought to equality under the law or the rule of law.

    I’m curious how you reconcile this characterization of the President’s speech with the part where he said (paraphrasing) “As soon as Congress actually passes a law on this topic, none of these executive actions will still apply.”

  26. Jack says:

    Obama – (In the voice of Eric Cartman) “Whatever, I do what I want!” and “You must respect my Athoritay!”

  27. Jack says:

    @Ron Beasley:

    While I agree that this has weakened our system of checks and balances the real fault does no lie with the POTUS but the totally dysfunctional congress and the weakest and most incompetent speaker of the house ever.

    So, it’s not the fault of the criminal who commits the crime, but the fault of the victim for not fighting back? Got it.

  28. ernieyeball says:

    @Jack:..the fault of the victim…

    So the Republicans in Congress are all a bunch of victims. Got it.
    Victims of their own kow-towing to the Pee Tardy Loons they are so afraid of.

  29. michael reynolds says:

    @ernieyeball:

    Exactly! The rich white guys with powerful government jobs, free health care and pensions are the True Victims, not the Mexican dishwasher trying to support his kids on sub-minimum wage. I think that’s obvious.

  30. ernieyeball says:

    @michael reynolds:..I think that’s obvious.

    What is that you are smoking?

  31. Jack says:

    @ernieyeball: @michael reynolds: Yes. Congress, the body elected to make laws, is a victim of an authoritarian president saying, I don’t like what you are doing so I’ll go around you. Are you saying just because someone is wealthy or has a high paying job they cannot be a victim?

    not the Mexican dishwasher trying to support his kids on sub-minimum wage.

    Then go the hell back to Mexico and support your kids. No one asked you to come here. You don’t get to break into someone’s home then complain they aren’t feeding you properly.

  32. John425 says:

    From the Volokh Conspiracy:

    Senator Obama 2008

    “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that’s what I intend to reverse when I’m president of the United States of America.”

    Some foolish voters thought that Obama meant that the big problem was that George Bush was bringing more and more power into the executive branch and not go[ing] through Congress. In fact, Obama obviously meant that the big problem was George Bush bringing more and more power into the executive branch and not go[ing] through Congress. So Obama kept his promise. George Bush is no longer bringing more and more power into the executive branch and ignoring Congress. President Obama is. And not just on immigration law, but by refusing to either ask Congress’s assent or even abide by the War Powers Act with regard to Libya and ISIS, by appointing czars to avoid confirmation hearings and Congressional oversight, by making phony recess appointments (invalidated 9-0 by the Supreme Court), by imposing common core by administrative fiat, by making ad hoc changes to Obamacare with little pretense of legal authority to do so, and so on and so forth.

  33. John425 says:

    @michael reynolds: One of the reasons so many “creatives” are liberals is that we know damn well that we somehow acquired a gift

    No, Michael. What bothers the rest of us is that through that creativity you think you’re fully entitled to rule over the masses. Look up “elitist”.

  34. An Interested Party says:

    I like the assumption that Hispanics are ignorant and will dutifully vote Democratic for generations.

    You should as people like you have been making a similar argument about black people and the Democratic Party…

    Congress, the body elected to make laws, is a victim of an authoritarian president saying…

    Well, as a shining example of a victims’ rights advocate, you are certainly free to write your Congressman and suggest that he/she do whatever is necessary to impeach the President…

  35. Guarneri says:

    @aFloridian:

    This comment is so full of presumed absolutist positions and straw men as to make it one of the more ridiculous I’ve seen from someone attempting to be serious. Just what we need. Another mind reader telling people what they think. You could save the keystrokes and just pull a Reynolds, simplemindedly viewing all things through the prism of bigotry, and simply declaring callous disregard and stupidity on the part of people with alternative views and experiences.

  36. anjin-san says:

    @Jack:

    is a victim of an authoritarian president

    Funny, for years conservatives have been telling us that Obama is a weakling, an empty suite, Neville Chamberlain lite.

    Why can’t Congress handle this feeble joke of a President? You know, kick some sand in his face? What kind of pussies are the Republicans?

    No one asked you to come here.

    No one asked my grandfather to come here. Yours either. I live in the American west, and when we are discussing Mexicans in the US, I try to keep in mind that we stole much of the west from Mexico in a war of conquest.

  37. ernieyeball says:

    @Jack:..Yes. Congress, the body elected to make laws,..

    Which Congress do you know of that is making laws?

  38. ernieyeball says:

    @Jack: No one asked you to come here.

    No one asked you to come here with your vile remarks either.
    No amnesty for you Jack. Why don’t you vamoose. (from the Spanish vamos)

  39. Grewgills says:

    @Jack:

    Are you saying just because someone is wealthy or has a high paying job they cannot be a victim?

    It is a bit odd that, judging from the volume of your comments here, you seem to find the people with the most privilege the most vicitimized.

  40. jukeboxgrad says:

    John425, a conservative, said this:

    you think you’re fully entitled to rule over the masses

    Two comments later, Guarneri, another conservative, said this:

    Another mind reader telling people what they think

    Priceless.

  41. jukeboxgrad says:

    aFloridian:

    Poor people – they deserve it

    This is a key point. Conservatives despise the poor. Link.

    michael:

    people in business. … miss the fact that they are cradled within a society that provides them the laws and standards and stability and support structure that make business possible

    Another key point. Adam Smith explained a long time ago that one of the core functions of government is to protect the rich. He said this:

    It is in the age of shepherds, in the second period of society, that the inequality of fortune first begins to take place, and introduces among men a degree of authority and subordination which could not possibly exist before. It thereby introduces some degree of that civil government which is indispensably necessary for its own preservation: and it seems to do this naturally, and even independent of the consideration of that necessity. The consideration of that necessity comes no doubt afterwards to contribute very much to maintain and secure that authority and subordination. The rich, in particular, are necessarily interested to support that order of things which can alone secure them in the possession of their own advantages. … Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.

    “Inequality of fortune” tends to lead to “subordination.” And civil government tends to spring up for the sake of preserving that “inequality of fortune.” Therefore government has a natural tendency to act “for the defence of the rich against the poor.” Government is generally set up by the rich “to support that order of things which can alone secure them in the possession of their own advantages.”

    More about how government was invented to protect the rich, and how it is the rich who depend on the power of the government:

    Wherever there is great property there is great inequality. For one very rich man there must be at least five hundred poor, and the affluence of the few supposes the indigence of the many. The affluence of the rich excites the indignation of the poor, who are often both driven by want, and prompted by envy, to invade his possessions. It is only under the shelter of the civil magistrate that the owner of that valuable property, which is acquired by the labour of many years, or perhaps of many successive generations, can sleep a single night in security. He is at all times surrounded by unknown enemies, whom, though he never provoked, he can never appease, and from whose injustice he can be protected only by the powerful arm of the civil magistrate continually held up to chastise it. The acquisition of valuable and extensive property, therefore, necessarily requires the establishment of civil government. Where there is no property, or at least none that exceeds the value of two or three days labour, civil government is not so necessary.

    Didn’t Smith know that a rising tide lifts all boats? Didn’t he ever hear about trickle-down economics? If he had, he would not have said “for one very rich man there must be at least five hundred poor, and the affluence of the few supposes the indigence of the many.” Socialist!

    The rich people who want to drown government in a bathtub are forgetting why it was invented in the first place: to protect them. And they forget one of the reasons it’s proper for them to pay more for it: because they depend on the power of government more than anyone else does.

  42. CharInOhio says:

    We just elected a whole tribe of RINOS who …….are not dedicated to stopping Obama or his policies and are already making MASS EXCUSES WHY …….They CANNOT STOP HIM ???
    That is NOT what we elected them for …….WE DID NOT ELECT THEM TO “WORK WITH OBAMA” …….WE ELECTED THEM TO STOP …….OBAMA ……

    I dont care about “GRIDLOCK” …….If you have to shut it down ….SHUT IT DOWN ………Just STOP this monster from destroying what is LEFT ……of our Country !!!! STOP WORRYING you are going to “look bad” come 2016 elections …….IF YOU DONT STOP THIS MONSTER ……There wont BE ………a 2016 election !!! ??? AND IF THERE IS …….there will be so many illegals voting Democratic …….you wont win anyhow ??? WORRY ABOUT NOW ………

    We just elected a whole tribe of SPINELESS RINOS who will bend over backwards to “accomodate” Obama while APPEARING to be doing something to stop him ……but not wanting to cut the funding or do any of the things THEY CAN DO ………to stop this man ………

    GROW A BACKBONE …..SAY “ELECTIONS HAVE CONSEQUENCES AND WE WON !!!” …….You have to BE LIKE THEY ARE …..To win over them …….you cannot worry over “being liked” ……..ect …….that is bullcrap !!!!!! That is WHY ……WE LOSE …..We want to be “NICE” ………forget NICE !!!!!!!!!! “NICE” MAKES YOU LOSE ………you are up against PURE EVIL and you are gonna have to grow a backbone to stand up to it !!!!!!

  43. Chabsentia says:

    @CharInOhio: The Congress does not answer to the people anymore. The Power in the Congress as well as the Spoils/MONEY is in the committees and the majority party controls and has more people on them. It is no longer about the people. It is about Power etc for the Majority. Wake up. This is the result of 25 years of Voter Apathy and low information voters

  44. DrDaveT says:

    @jukeboxgrad:

    The rich people who want to drown government in a bathtub are forgetting why it was invented in the first place: to protect them.

    More subtly, this is why Norquist and his minions focus on minimizing the federal government. Local government exists predominantly to protect local wealth, but that effect dissipates as you move farther up the chain. The federal government has more power to redistribute wealth and defend the poor from the rich than the state government does, and the state more than the local. The feds also have more incentive, because they care about the large-scale long-term economic health of the nation, and local wealth does not.

  45. jukeboxgrad says:

    Good point, I generally agree. But I would add that the federal government spends a ton of money protecting the rich. Look at military spending. If I live in a trailer somewhere, my life probably won’t change much if a foreign power invades and occupies Washington. But if I’m rich, my life will probably change a lot.

    But this doesn’t really contradict anything you said. Norquist et al want the federal government to shrink, except for military spending.

  46. MarkJ says:

    @LaMont: Gee, it’s good to see you’re so trusting and optimistic. I’d love to sell you a car….or a house…or some great beach front property in North Dakota.

  47. MarkJ says:

    @DrDaveT: One little problem with your post–you’re assuming the feds always have everyone’s best interests at heart, they’re incorruptible, and they aren’t averse to their implementing their own “protection” rackets on the rich AND the poor.

    Capisce, paisan?

  48. jukeboxgrad says:

    you’re assuming

    He is not assuming what you assume he is assuming.

  49. John425 says:

    @jukeboxgrad: Jukeboxgrad thinks that 2 conservatives charging liberals as elitist is an “under the bed” conspiracy. We don’t think that liberals are in any great conspiracy- just a small one for their narrow little minds.