Federal Judge Orders Temporary Halt To President’s Deferred Deportation Program

A Federal Judge has issued a temporary halt to the Obama Administration's deferred deportation program, but appeals can be expected.

law-gavel-lights

A Federal District Court Judge in Texas has ordered a temporary halt to the Obama Administration’s deferred deportation plan for some people who are in the country illegally, ruling that it exceeds the authority granted to the Executive Branch by Federal immigration laws:

A federal judge in Texas has ordered a halt, at least temporarily, to President Obama’s executive actions on immigration, siding with Texas and 25 other states that filed a lawsuit opposing the initiatives.

In an order filed on Monday, the judge, Andrew S. Hanen of Federal District Court in Brownsville, prohibited the Obama administration from carrying out programs the president announced in November that would offer protection from deportation and work permits to as many as five million undocumented immigrants.

The first of those programs was scheduled to start receiving applications on Wednesday and the immediate impact of the ruling is that up to 270,000 undocumented immigrants nationwide who came to the United States as children will not be able to apply for deportation protection under an expansion of an existing executive program. A larger new program is scheduled to begin in May.

Judge Hanen, an outspoken critic of the administration on immigration policy, found that the states had satisfied the minimum legal requirements to bring their lawsuit. He said the Obama administration had failed to comply with basic administrative procedures for putting such a sweeping program into effect.

The administration argued that Mr. Obama was well within long-established federal authority for a president to decide how to enforce the immigration laws. But Texas and the other states said the executive measures were an egregious case of government by fiat that would impose huge new costs on their budgets.

The White House responded to the judge’s ruling in a statement early Tuesday, saying the president had acted within the law and with decades of legal precedent behind him in issuing the guidelines.

“The Department of Justice, legal scholars, immigration experts and the district court in Washington, D.C., have determined that the president’s actions are well within his legal authority,” the White House statement said. “The district court’s decision wrongly prevents these lawful, common sense policies from taking effect, and the Department of Justice has indicated that it will appeal that decision.”

In ordering the administration to suspend the programs while he makes a final decision on the case, Judge Hanen agreed with the states that the president’s policies had already been costly for them.

“The court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country,” Judge Hanen wrote. “Further, the record supports the finding that this lack of enforcement, combined with the country’s high rate of illegal immigration, significantly drains the states’ resources.”

(…)

In his opinion, Judge Hanen accused administration officials of being “disingenuous” when they said the president’s initiatives did not significantly alter existing policies. He wrote that the programs were “a massive change in immigration practice” that would affect “the nation’s entire immigration scheme and the states who must bear the lion’s share of its consequences.” He said the executive actions had violated laws that the federal government must follow to issue new rules, and he determined “the states have clearly proven a likelihood of success on the merits.”

Since the lawsuit was filed on Dec. 3, the stark divisions over Mr. Obama’s sweeping actions have played out in filings in the case. Three senators and 65 House members, all Republicans, signed a legal brief opposing the president that was filed by the American Center for Law and Justice, a conservative legal action organization.

Joe Arpaio, the sheriff of Maricopa County in Arizona, who is known for crackdowns on people living in the country illegally, also filed a brief supporting the states’ lawsuit. In December, a federal judge in Washingtondismissed a separate lawsuit by Sheriff Arpaio seeking to stop the president’s actions.

On the other side, Washington and 11 other states as well as the District of Columbia weighed in supporting Mr. Obama, arguing that they would benefit from the increased wages and taxes that would result if illegal immigrant workers came out of the underground. The mayors of 33 cities, including New York and Los Angeles, and the Conference of Mayors also supported Mr. Obama.

“The strong entrepreneurial spirit of immigrants to the United States has significantly boosted local economies and local labor markets,” the mayors wrote in their filing.

Some legal scholars said any order by Judge Hanen to halt the president’s actions would be quickly suspended by the United States Court of Appeals for the Fifth Circuit in New Orleans.

Federal supremacy with respect to immigration matters makes the states a kind of interloper in disputes between the president and Congress,” said Laurence H. Tribe, a professor of constitutional law at Harvard. “They don’t have any right of their own.”

The states’ lawsuit quotes Mr. Obama as saying many times in recent years that he did not have authority to take actions as broad as those he ultimately took. Mr. Tribe said that argument was not likely to pass muster with appeals court judges.

“All of that is interesting political rhetoric,” he said, “but it has nothing to do with whether the states have standing and nothing to do with the law.”

This ruling by Judge Hansen, a George W. Bush appointee who was originally nominated by President George H.W. Bush only to see his nomination lapse before the Senate could vote on it in 1992, deals with two issues that impact the both the legal merits of the program the President announced and the future of any litigation challenging that program. As I’ve discussed in the past, one immediate hurdle that any party challenging the program, which is officially known as “Deferred Action For Parents Of Americans And Lawful Permanent Residents,” or DAPA, is the question of whether or not anyone would have standing under the law to actually challenge the program. Late last year, for example, a lawsuit that had been filed by Maricopa County, Arizona Sheriff Joe Aripaio was dismissed by a Federal Judge in Washington, D.C. at least in part because the Judge found that Aripaio lacked standing to challenge the DAPA program. In that case, Arpaio had essentially argued that he had standing to bring the case because the new policy would require his agency to expend resources to deal with illegal immigrants arriving in the area in response to the new Federal policy. The Judge in that case, correctly in my opinion, rejected Arpaio’s argument because he had failed to articulate any kind of particularized harm resulting from the DAPA program.

In the lawsuit before Judge Hansen, Texas and the other states that had joined it in the litigation are essentially making the same type of argument regarding the alleged damages that they would suffer as a result of the new policy. This is essentially the same argument that Arpaio made in his lawsuit, and as I noted when the Texas lawsuit was first filed  it’s an argument that does not really stand up to scrutiny when you look at it logically. Where the Judge in Washington rejected Arpaio’s standing argument, though, Judge Hansen essentially accepted it lock, stock, and barrel. Essentially, Judge Hansen argued that Texas and the other states have standing because the new program would increase the number of people eligible for certain state benefits. The problem with that argument, though, is that most of the benefits that the states cite in their favor are not ones that DAPA requires them to issue, so, as the Justice Department argues, the injuries are in some sense self-inflicted. Without question, the standing issue is one that will be heavily argued in the expected appeal of this ruling to the Fifth Circuit Court of Appeals and, if necessary, the Supreme Court.

On the merits of the case, it’s important to note that Judge Hansen has not ruled that the Administration acted unconstitutionally in issuing the regulations that make up the DAPA program, or even that the regulations violate the discretion that the nation’s immigration laws grant to the Executive Branch. Instead, his ruling at this point is based on the argument made by the states that the Administration failed to abide by the provisions of the Administrative Procedure Act in issuing the regulations. In theory, the Administration could overcome this problem through some mildly cumbersome but ultimately limited bureaucratic measures, but it’s unlikely that will happen given the fact that this is merely a temporary ruling until Hansen rules on the ultimate merits of the state’s claims and that the process of appealing this decision to the Fifth Circuit and, ultimately, the Supreme Court will ultimately be less cumbersome and time consuming. For the time being, though, this means that the DAPA program is on temporary hold and that the estimated three to four million people who would have been eligible to apply under its provisions will have to wait until the stay is lifted to proceed forward.

Ultimately, as I’ve noted before, the Supreme Court emphasized in its decision several years ago regarding Arizona’s controversial bill to give police expanded authority to detain suspected illegal immigrants that the Federal Government has broad discretion in the area of immigration that pre-empts the powers of the states. As Ian Millheiser notes, that decision was handed down mere days after the President had announced the initial Deferred Action For Childhood Arrivals (DACA) program that provides temporary legal status for immigrants brought to this country illegally as children. No doubt, the Justices were well aware of this program when they were making the final adjustments to their opinions in that case. Indeed, Justice Scalia had taken the rather unusual step of mentioning DACA in his dissenting opinion even though it was entirely irrelevant to the case before the Court. As Millheiser argues, if the Court shared Scalia’s disdain for DACA then it seems counterintuitive that they would have been comfortable with issuing an opinion with such a broad endorsement of near-complete discretion for the Federal Government in general, and the Executive Branch in particular. Obviously, we can’t know exactly how the Justices would rule in this case if and when it reaches them, but the Arizona case certainly seems to suggest that they would be more likely to favor the arguments of the Justice Department than those advanced by the states.

As a preliminary matter, the Federal Government has already announced that it will be appealing this ruling to the Fifth Circuit, which will have to decide whether or not to stay Judge Hansen’s ruling before ruling on the merits itself. Potentially, the Supreme Court could also be asked to weigh in on the question of a stay of the ruling as well. If that stay is lifted, then DAPA will be able to go forward while the merits case proceeds forward. If it is not, then the program would be on hold until a final ruling is issued, and perhaps far beyond then considering that this is likely to be a case that will find its way to the Supreme Court eventually.

Here’s the opinion:

Texas Et Al v. United States Et Al Opinion by Doug Mataconis

FILED UNDER: Borders and Immigration, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. HarvardLaw92 says:

    Not exactly surprising. Texas went venue shopping.

  2. C. Clavin says:

    the government’s failure to secure the border has exacerbated illegal immigration into this country

    What does secure the border mean? It’s a nonsensical term used by Republicans as an excuse to not take action…because, xenophobia.

    Hansen, a Republican appointee, has a long history of criticizing the Obama administration.
    On the most basic level, anyone who agrees with Joe Arapio is a friggin’ nutjob. Period.

    There is an easy solution to all of this…PASS A BILL!!!!
    What we are seeing is that the Republican Congress is as incapable of Governing as everyone predicted. They haven’t been able to pass the Secure Our Borders First Act…hell they are going to shut down the Government because they can’t pass a DHS funding bill…and yet they are crying about securing the borders. We pay ’em all $175K a year…and they don’t do anything for it.
    PASS A FVCKING BILL you moochers.

  3. C. Clavin says:
  4. Hans says:

    The president himself said 22 times that he didn’t have the authority to do this, in the past, before changing course and doing it last November, as PolitiFact and FactCheck.org have noted.

    Even the Cato Institute, which supports unrestricted immigration, filed an amicus brief arguing that President Obama’s executive action on immigration exceeded his legal authority. Not everything one likes is permissible under federal law.

    Texas logically has standing to challenge it, based on the administrative burdens it creates for the state. Even when a federal action does not directly financially or administratively burden states (the way President Obama’s action here undoubtedly does, as Texas explained), states still can have standing to challenge it if it preempts their laws or defeats their public policies. See, e.g., Wyoming ex rel. Crank v. United States, 539 F.3d 1236 (10th Cir. 2008) (state could challenge federal restrictions on firearms that impeded the effects of state administrative processes).

  5. Mu says:

    The whole thing becomes moot anyway when the DHS goes home at the end of the month. I still find it funny that you can issue an injunction against doing nothing.

  6. Will Taylor says:
  7. HarvardLaw92 says:

    @Will Taylor:

    I think that the distribution and use will absolutely happen. That having been said, I think this is just the opening salvo of a longer battle. It brings into specific relief the fundamental flaws with how the city is governed. If Congress proposes to exert unilateral jurisdiction over these peoples’ lives, then they deserve representation elected to that Congress, otherwise it needs to be an independent city (a la Baltimore, etc.) that governs itself.

  8. Jimbo OPKS says:

    @C. Clavin: The Congress is not obligated to pass a bill. But, since you asked here is the one I would pass.
    1. Anyone who enters the country illegally is permanently enjoined from ever becoming a citizen.
    2. Anyone who enters the country illegally and all of their dependents are enjoined from ever receiving federal benefits.
    3. Anyone who works for wages in the US must pass an e-Verify check.

    I’d add in a constitutional amendment so that children of illegal immigrants would not be citizens of the US but of their parent’s home countries.

    I’m sure you would prefer the status quo to this bill, n’est ce pas?

  9. HarvardLaw92 says:

    @Hans:

    Incorrect. Matters of immigration policy are reserved to the federal government by the Constitution, and indeed states are debarred from enforcing immigration matters within their own judicial systems. I’m seeing a difficult road ahead for states asserting standing with regard to a matter that the Constitution entirely removes from their authority to begin with.

  10. Hans says:

    As I noted above, Texas logically does have standing to challenge President Obama’s executive action under court decisions such as Wyoming v. U.S., since his order does have financial and administrative consequences for the state.

    Obama’s action seems to violate at least three separate provisions of the federal immigration laws:

    http://www.examiner.com/article/people-have-standing-to-challenge-obama-s-unconstitutional-immigration-action

    Obama’s executive action will also impose major costs on taxpayers. The Associated Press, and Stephen Dinan of the Washington Times, have reported that as a result of President Obama’s actions, the IRS will pay many billions of dollars in retroactive refundable tax credits to undocumented immigrants covered by the executive action (such as Earned Income Tax Credits), even if they paid no taxes in the past.

    Since state tax codes are in some cases keyed to the federal tax code, states may also end up paying out billions in refundable tax credits to undocumented immigrants as result of Obama making beneficiaries of his executive action eligible for retroactive refundable tax credits of up to $24,000 under the EITC and other tax credits. This financial inr isaitnal

  11. HarvardLaw92 says:

    @Jimbo OPKS:

    Because 1, 2 and 3 will somehow convince them not to come? Good luck.

    The amendment would never happen, and I think you know that.

    Not that I am opposed, from a legal perspective anyway, to deportations, but what exactly do you think the outcome of your proposed policy shifts would be, and why? What benefits do you propose will be realized?

  12. al-Ameda says:

    Judge Hanen, an outspoken critic of the administration on immigration policy, found that the states had satisfied the minimum legal requirements to bring their lawsuit. He said the Obama administration had failed to comply with basic administrative procedures for putting such a sweeping program into effect.

    A judge in Texas rules against the Administration?
    I’m sure many people are shocked by this outcome.
    I fail to see how Texas can determine what the Executive Branch should do with respect to immigration. Texas put this in front of a conservative court in Texas and got the desired (although completely unexpected) result.

  13. LaMont says:

    @Jimbo OPKS:

    Liberals wouldn’t have to shoot that suggestion down. The suggestion is such an extreme Republican wet dream that business owners would ultimately shoot it down first.

  14. HarvardLaw92 says:

    @Hans:

    The financial and administrative consequences are immaterial. States have no role in determining or enforcing immigration policy, save the limited role of arrest based on immigration status, and even then they have to take affirmative action to be able to exercise that role.

    As for costs to taxpayers – Congress has the ability to address those, but thus far has refused to do so. With regard to those you assert will be suffered by the states, nobody forced them to couple their taxation process with IRS. They’re free to decouple it.

    Even better, they don’t need a court ruling to pursue that option.

  15. Hans says:

    @HarvardLaw92:

    Financial and administrative costs are irrelevant to the MERITS, but they are the crux of the standing issue. Do you understand the basic legal distinction between STANDING and the MERITS?

  16. C. Clavin says:

    @Jimbo OPKS:
    Your imaginary bill is impossible to implement.
    Thanks for not contributing anything of value.

  17. Will Taylor says:

    @HarvardLaw92:

    Thanks, i had heard rumblings about this and then read the Post article the other day. i didn’t realize how quickly things were developing and kind of expected the Republicans in Congress to delay this.

  18. Jimbo OPKS says:

    @HarvardLaw92: Reduce the supply of unskilled labor and increase wages for working US citizens. See anything by Mickey Kaus.

  19. Hans says:

    @HarvardLaw92:

    Texas is not challenging federal immigration law, but rather insisting that the Obama administration violated the immigration laws, and the federal Administrative Procedure Act to boot. So the fact that immigration law is for the federal government (specifically Congress) is no barrier to Texas’s lawsuit.

    Non-federal parties can, and successfully have, brought challenges to presidents’ executive orders based on those orders overstepping their authority, leading to federal courts invalidating executive orders in cases such as Chamber of Commerce v. Reich (a 1996 decision by the DC Circuit Court of Appeals).

  20. HarvardLaw92 says:

    @Hans:

    States can only attempt to assert standing with regard to costs deriving from federal programs which they are compelled by the federal government to fund. Costs deriving from state initiated actions, even if those actions are intended to address the consequences of federal action (or inaction) with regard to a federal prerogative are just not going to work.

    You might as well say that states have some imagined standing based on the economic costs they incur as the result of bankruptcy rulings, which is another federal prerogative.

    Hint – they don’t. Did somebody post a link to this article over on some Tenther blog?

  21. HarvardLaw92 says:

    @Jimbo OPKS:

    As I suspected. Just curious: what site linked you to this article?

    Kaus is a moron. Aside from the economic consequences of just removing 12 million consumers from the economy, which none of you seem inclined to acknowledge, who is going to shoulder the increased cost of those wages?

  22. HarvardLaw92 says:

    @Hans:

    You do not seem to be getting it. Hansen invented standing which the states are not entitled to in order to even attempt to reach the merits. He erred in doing so. The merits – whether the executive violated immigration laws and / or APA – can never be reached by a state which lacks standing to bring the suit in the first place.

    Establishing standing is the burden of the plaintiff(s). I’m just asserting that they will have a difficult, if not impossible, task in establishing standing in order to insert themselves into a federal prerogative. You can most probably expect the 5th Circuit, or eventually SCOTUS, to end up remanding this comic strip back to Hansen based on a lack of standing.

    He’ll be forced to reverse, and oh well, better luck next time.

    For the 900th time today – states have no role – none. zero. zippo. nada. – in determining immigration policy. I get that they think that they should, but until they amend the Constitution, they do not. It’s that simple.

  23. Hans says:

    Texas clearly had standing to bring its challenge. This claim by “HarvardLaw92” was just wrong, under controlling precedent (incidentally, it’s odd that he uses the Harvard monicker to talk down to me, since I am also a Harvard Law grad):

    “States can only attempt to assert standing with regard to costs deriving from federal programs which they are compelled by the federal government to fund.”

    Compulsion is not always required. States were found to have standing to challenge Obamacare mandates that only applied to them to the extent that they voluntarily provided health insurance.

    The Seventh Circuit’s decision in Village of Bellwood v. Dwivedi (1990) allowed a suit over voluntarily-incurred costs of counteracting the challenged practice.

    Wyoming v. U.S. found standing based on federal law merely defeating the effects of voluntarily-provided state administrative expungement proceedings.

    Obama doesn’t have the power to rewrite federal immigration law, which is set by Congress, and the states have legal standing to challenge presidential encroachment on Congress’s prerogatives. Cf. Chamber of Commerce (D.C. Cir. 1996) (non-federal party successfully challenged presidential encroachment on labor policy through executive order).

  24. HarvardLaw92 says:

    @Will Taylor:

    They predictably came down on the “drugs are bad, m’kay?” side of the issue, almost certainly for political reasons. That said, they haven’t blocked it so much as they have made it impossible to regulate, and in doing so made a potentially bad situation 1,000 times worse.

    I’m reserving judgment on legalization. I personally don’t care, but I don’t think it’ll be all sunshine and roses either. I do like that it sets up a much larger (and long overdue) battle over the future of district government.

  25. HarvardLaw92 says:

    @Hans:

    Do me a favor. Draw on your extensive legal education and enlighten me as to which, if any, of those cases you cited deal with a constitutionally reserved federal prerogative.

    I’ll be waiting …

  26. al-Ameda says:

    @Jimbo OPKS:

    Reduce the supply of unskilled labor and increase wages for working US citizens. See anything by Mickey Kaus.

    Do not unskilled undocumented immigrant workers compete with unskilled American workers?

    Are you saying that employers will pay an unskilled American worker more than they will pay an unskilled undocumented immigrant worker?

    I’m not sure I see it that way, because in both cases these workers are non-unionized and have virtually no market power unless the labor market for unskilled workers is tight.

  27. Hans says:

    Cases are many in which the courts have not only granted standing to state or local governments like Texas, but also struck down challenged federal legislation passed under an enumerated federal power, in challenges by state or local governments. See, e.g., City of Boerne v. Flores (1997) (Congress’s power under section 5 of the 14th Amendment); Shelby County v. Holder (striking down a piece of the Voting Rights Act enacted under the enforcement clause of the 15th Amendment); Seminole Tribe of Florida v. Florida (article I powers of Congress limited specifically as to states).

    In the Obamacare challenges, the federal government itself admitted that 11 of the 20 state plaintiffs challenging Obamacare had standing to challenge its Medicaid provisions (which the Supreme Court partially invalidated, while upholding the individual mandate at the heart of the law).

    This comment is an answer to HarvardLaw92’s comment asking for cases that allowed states to sue that ‘deal with a constitutionally reserved federal prerogative.”

  28. HarvardLaw92 says:

    @Hans:

    We spent three years in the same law school (according to you anyway), and yet you somehow never learned the difference between an enumerated power and a reserved prerogative?

    Article 1 explicitly delineates two powers as being reserved solely to the federal government. No state involvement in. No state rights regarding. No state power to regulate. You have yet to cite a case in which federal courts have established standing by the states to challenge federal authority in either of those areas.

    Try again (good effort though 😀 )

  29. Hans says:

    I noted above that the President’s action will impose major costs on taxpayers by making undocumented immigrants eligible for tens of billions of dollars in refundable tax credits even if they paid and will pay no taxes (as the IRS commissioner has conceded in Congressional testimony reported by the Associated Press and Washington Times).

    But I forgot to furnish a link to those articles. Here is the link to the Times article:

    http://www.washingtontimes.com/news/2015/feb/11/irs-pay-back-refunds-illegal-immigrants-who-didnt-/?page=all

  30. Will Taylor says:

    @HarvardLaw92:

    This should be an fun battle to watch. Most of my interest in this is financial related as I’m an investor in this industry. I’m part of a group in Ohio too trying to legalize now, but we’re facing a lot more difficulties there than in the DC area.

  31. HarvardLaw92 says:

    @Hans:

    Which is a matter for Congress to resolve via its status as a co-equal branch of government with the power to change and/or limit the laws establishing those refundable credits.

    LOL, what next? You going to be inventing standing for individual taxpayers to sue the federal government for spending money in ways that they dislike?

    And you still haven’t answered my request for any cases in which federal courts have granted states standing to challenge either of the two reserved prerogatives. You sure you didn’t mean to say you attended George Mason? 😀

  32. HarvardLaw92 says:

    @Will Taylor:

    At basis, I personally don’t see much of a reason to freak out over marijuana legalization. I don’t use the stuff, but I’m not particularly threatened or bothered if others choose to.

    I think there will still be cases of excess that may need to be dealt with, so I’m not exactly prepared to just remove law enforcement or the law from the matter entirely, but we’ve gone so far off the deep end in the other direction with regard to recreational drug use, to no apparent benefit and much evident cost, that it’s clear we need to rethink how it’s currently addressed within the law.

  33. Hans says:

    In addition to the fact that Texas has standing to bring its challenge, several types of people logically also have standing to challenge it (possibly including legal immigrants in my own family).

    For example, many legal immigrants or legally-present aliens have standing to challenge Obama’s action, because it will injure them by delaying their receipt of immigration papers needed for them to access important benefits, opportunities, and freedoms. President Obama’s action will result in further delays in processing legal immigration visas and green cards, since it will trigger hundreds of thousands if not millions of applications by illegal immigrants seeking a work permit and the right to stay in the U.S., which may temporarily overwhelm the immigration bureaucracy. Even if that is not so, it will massively increase the backlog of immigration-related applications, forcing legal immigrants to wait additional months or years for their applications to be processed. One of my relatives, a Korean immigrant, can’t get her state driver’s license renewed because, even though she is a longtime legal permanent resident, her antique permanent residence card isn’t recognized for driver’s license purposes. So she was told that she would first have to get a new permanent resident card, which will require her to pay at least $450 to the federal government in application fees, and wait at least ten months for her permanent resident card to be reissued, before she can obtain her state drivers’ license. And that was even before Obama’s action started getting implemented and producing additional delays for legal immigrants.

    As Katie Pavlich notes at Hot Air,

    “When illegal immigrants are prioritized by the federal government and given a spot at the front of the line, millions of individuals going through the proper legal channels to become American citizens or to obtain visas are pushed even farther back in the process and given longer waiting periods. In most situations, this means legal immigrants spending longer periods of time away from their families. . . “At current staffing levels, USCIS issues about 1 million green cards per year. And when Obama enacted his first executive amnesty, the Deferred Action for Childhood Arrivals [DACA] in 2012, wait times for legal immigrants to get their visas tripled from under five months to over 15 months. “Only about 1 million illegal immigrants were eligible to apply for DACA amnesty and only about 600,000 were given amnesty. Obama’s next amnesty, however, will reportedly allow up to 5 million illegal immigrants to apply and no one knows how many will take him up on the offer. But assuming the turnout for Obama’s next amnesty is bigger than DACA, we can safely assume that legal immigration delays will get much much worse.”

    The New York Times published an extensive piece in February detailing the consequences of prioritizing illegal immigrants before individuals engaged in the legal process: “Many thousands of Americans seeking green cards for foreign spouses or other immediate relatives have been separated from them for a year or more because of swelling bureaucratic delays at a federal immigration agency in recent months. The long waits came when the agency, Citizenship and Immigration Services, shifted attention and resources to a program President Obama started in 2012 to give deportation deferrals to young undocumented immigrants, according to administration officials and official data. The trouble that American citizens have faced gaining permanent resident visas for their families raises questions about the agency’s priorities and its readiness to handle what could become a far bigger task.”

    With his recently announced amnesty plan, President Obama has given USCIS the “far bigger task” previously warned about and has made the system more unfair, not less. It’s unfortunate President Obama’s focus isn’t on prioritizing the people who want to do things legally or on reforming the legal immigration system before rewarding millions of individuals for breaking the law by putting them at the front of the line.

    Obama’s executive action will likely drain the immigration system of resources needed to process the applications of legal immigrants. His earlier DACA executive order charged illegal immigrant applicants so little – essentially the same amount as what my legal immigrant relative will have to pay just to get a new green card, and not enough to cover the additional cost of verifying any of the many claims in the illegal immigrants’ applications — that it drained agency resources needed to process legal immigrants’ greencards or visas. The same will likely also be true of his most recent executive action expanding his de facto amnesty for illegal immigrants. (Illegal immigrants who applied for Obama’s earlier DACA amnesty were not charged not enough to cover the cost of both processing their applications and verifying the information contained in them, which was as a result never verified, such as false claims that applicants had high-school diplomas, which many in fact did not have, even though 99% of applications were granted).

    Another category of people also logically have standing to challenge Obama’s illegal immigration action: people who apply for a job but lose out to an illegal immigrant granted a work permit by the Obama administration. They would have standing, even absent proof of but-for causation. See Northeast Florida Chapter v. Jacksonville, 508 U.S. 656 (1993) (white contractor need not show he would have received the contract but for a racial set aside to challenge it, and could sue regardless of whether he could show that he would have received a government contract in the absence of racial preferences in contracting). It is enough for them to show that they had to compete for a job on slightly less advantageous footing than before.

    Indeed, such people also have standing if they simply allege that they would apply for a job if not for the unwanted competition due to the granting of the work permits to illegal immigrants. See court rulings such as Committee for Effective Cellular Rules v. FCC, 53 F.3d 1309, 1316 (D.C. Cir. 1995), and the Supreme Court’s decision in Gratz v. Bollinger, 123 S.Ct. 2411 (2003) (finding standing to challenge race-conscious transfer admissions process at university based on the fact “that [plaintiff] `intends to transfer to the University of Michigan when defendants cease the use of race as an admissions preference’”).

    Moreover, where a federal action impacts the ability to obtain a benefit at the state level (like a state driver’s license), affected people have standing to challenge the federal action. See, e.g., Tozzi v. HHS, 271 F.3d 301, 307-08 (D.C. Cir. 2001).

  34. Rick DeMent says:

    @Hans:

    I noted above that the President’s action will impose major costs on taxpayers by making undocumented immigrants eligible for tens of billions of dollars in refundable tax credits even if they paid and will pay no taxes (as the IRS commissioner has conceded in Congressional testimony reported by the Associated Press and Washington Times).

    I see your point, with congress incapable of passing any legislation, this may be the case. Too bad we didn’t elect Democrats.

  35. Mu says:

    @Jimbo OPKS: I would love to see your amendment pass. Then I watch how wast swatches of rural America (with all its staunch R voters) become depopulated as no one can afford to grow hands-on crops anymore without cheap labor. See the outcry in Georgia and Alabama when all their precious peaches rotted due to lack of seasonal workforce that didn’t like mandatory e-verify. And coastal CA will love it when the inland farmers give up their last water rights. Suddenly, half the red states turn blue, and the amendment will be for ever known as the kill GOP bill.

  36. HarvardLaw92 says:

    @Hans:

    So let me get this straight – I’m supposed to 1) believe that you’re Hans Bader or, alternatively, 2) that you graduated from HLS but never learned to footnote your sources when you copy & paste?

    Pass on both, thanks.

    And you STILL haven’t answered my question.

  37. David M says:

    @Hans:

    The president himself said 22 times that he didn’t have the authority to do this, in the past, before changing course and doing it last November

    This is the new “Obama said the stimulus would keep unemployment below 8.5%”.

  38. Will Taylor says:

    @HarvardLaw92:

    This is what happens when law students can’t get jobs.

  39. HarvardLaw92 says:

    @Will Taylor:

    LOL, why practice law when you can get a gig commenting about it on Geraldo? 😀

  40. C. Clavin says:

    As Katie Pavlich notes at Hot Air…

    Well, heck…if a totally non-partisan organization like Hot Air says it, it must be true.
    No need to waste any more time on it.

  41. Hans says:

    @C. Clavin:

    I also quoted a New York Times article at length. Even the Times article establishes that many people should logically have standing to challenge the President’s executive action.

  42. C. Clavin says:

    The Daily Beast has a good take-down of this activist decision…
    http://www.thedailybeast.com/articles/2015/02/17/the-right-s-very-own-activist-judge-issues-immigration-ruling-filled-with-republican-talking-points.html

    So, doing nothing is bad, and doing something is bad. The only not-bad thing is doing everything: deporting “illegals” without creating any regime for those who aren’t immediately deported.

  43. Hans says:

    Even the Cato Institute, which supports legislation to legalize all undocumented immigrants, has stated that Obama’s executive action violated the Administrative Procedure Act and the Constitutional separation of powers.

    It filed an amicus brief in support of Texas’s legal challenge to President Obama’s immigration executive action, which the judge has found likely violates the APA.

  44. HarvardLaw92 says:

    @Hans:

    LOL, a libertarian hot air chamber filed an amicus brief in opposition to a federal action, and a handpicked district judge who has extensively stated, publicly, that he disagrees with the action was picked to rule on it. I’m shocked, SHOCKED, I tell you, to discover that there is gambling going in on this establishment. Somebody get me some oxygen …

    If you are indeed Bader, which I still doubt, I’m beginning to see why you clerked for a nobody, washed out at Skadden and ended up bloviating for Kochtank. Stick to writing puff pieces for the libertarians. Actually making a concise argument seems to be beyond your capabilities.

    You have a nice day 😀

  45. David M says:

    @Hans:

    Cato employs the odious and extraordinarily dishonest Michael Cannon. Given how ethically compromised the entire organization is by that association, how is bringing them up doing anything but undermining your argument?

  46. C. Clavin says:

    @HarvardLaw92:
    oh, snap….

  47. Blue Galangal says:

    @HarvardLaw92: I think I love you.

  48. Hans says:

    Above, I explained why Texas logically does have standing to challenge the President’s executive action, which violated the APA (it also violates at least three specific provisions of the federal immigration laws passed by Congress).

    In response, commenters largely ignored the precedents I cited, and instead strangely suggested that I “can’t get a job” (I have been continuously employed as a lawyer for nearly 20 years, after serving as a federal court clerk) and that I attended “George Mason” (a perfectly fine school, although my alma maters are the University of Virginia and Harvard Law School, not George Mason).

    But let me address some of the points:

    1. People can sue when the President allegedly encroaches on the prerogatives of Congress (as in this case, where Texas alleges that President Obama is flouting the immigration laws passed by Congress), as long as they, too, are injured, even though that requires the courts to take sides in an inter-branch conflict (here, the House has voted to override Obama’s action). See the Supreme Court’s famous decision in the Youngstown case, declaring President Truman’s actions unconstitutional, and the D.C. Circuit’s more recent decision declaring illegal President Clinton’s pro-union executive order on strikebreaking (see Chamber of Commerce v. Reich (1996).

    2. That logically includes states. States do not have narrower standing to sue the administration; indeed, in some cases, they receive “special solicitude” in Supreme Court standing analysis (see Massachusetts v. EPA, in which the Supreme Court so ruled).

    3. Challenges can be brought by non-federal actors even to matters within exclusive grants of authority to the federal government (e.g., Eldred v. Ashcroft, which decided such a case on the merits, with two justices voting to strike down the legislation, which involved the federal government’s exclusive jurisdiction over copyright).

    4. It is sufficient for standing if a state experiences administrative or financial burdens as a result of federal action to challenge it (see, e.g., Wyoming ex rel. Crank v. U.S. (10th Cir. 2008); Oklahoma v. U.S.; various Obamacare challenges, etc.), even if the burdens would not occur absent voluntarily-passed state laws conferring benefits on employees or citizens, such as those that would be altered or affected by the federal action of legislation. Private parties can also sometimes sue under such circumstances, see Village of Bellwood v. Dwivedi (1990) (standing based on voluntary action to counteract the challenged practices).

    5. Even if the injury is the result of a combination of state and federal action, there is still standing to challenge it if the federal action was a “substantial factor” (not the exclusive factor) in the resulting injury. See Tozzi v. HHS (D.C. Cir. 2008) (standing existed to challenge federal classification which triggered action under state and local law).

  49. JohnMcC says:

    Another situation in which the conflating of policy with politics has placed a huge logjam in the way of our actually solving a problem that afflicts us as a nation. Millions of our neighbors are driving unlicensed, working without paying taxes, crowding into homes that have become bunkhouses and live their lives fearful that a slight misstep can separate them from the families. There is no way that this kind of negativity doesn’t make this a sadder, more desperate country. But because it is an electoral issue for the right wing we are blocked from making any reasonable effort to resolve it.

    I think quite often of the line from the Jimmy Carter campaign that we are so much better as a people than we are as a government.

  50. HarvardLaw92 says:

    @Hans:

    So, in essence, you just regurgitated the same crap you’ve already repeatedly spouted, but you still have not addressed the question: In which cases have federal courts recognized standing for states seeking to challenge federal authority with regard to the two constitutionally reserved prerogatives created by Article 1?

    You’ve invented some right for immigration applicants to have their petitions considered in chronological order of application, which is laughable. For starters, no one is guaranteed any right to immigration. They are guaranteed the right to APPLY for immigration.

    Now, aside from the fact that no such parties are asserting injury here, you still attempt to piggyback an invented right for states to challenge a federal prerogative. Inventive, but no cigar.

    Yet again – just give me one case in which federal courts have granted a state, any state, standing to challenge federal authority regarding immigration. I realize that you guys are having budget problems of late, but surely you still have access to Lexis over at Kochtank?

    I have been continuously employed as a lawyer for nearly 20 years, after serving as a federal court clerk)

    Well, sort of, if we expand the definition of “being a lawyer” to talking about the law on a blog.

    I served as a clerk – federal appellate among others – too! How wonderful for you. You – assuming we buy this You are Bader nonsense, which I still don’t – managed to clerk for a geriatric nobody who was already knocking on death’s door when you showed up. How long did you serve before ol Larry kicked the bucket in 1995? A week? Two? Spare me the resume shuffling. You’re out of your league in that regard.

    Just answer the question, McFly, and we’ll stop being so mean to you. Well, maybe … 🙂

  51. Hans says:

    The President himself used to admit that these immigration actions would be beyond his authority, as Factcheck.org and PolitiFact have noted.

    http://www.factcheck.org/2014/11/obamas-immigration-amnesia/

    http://www.politifact.com/truth-o-meter/statements/2014/nov/21/barack-obama/are-barack-obamas-immigration-moves-kinds-actions-/

    Thus, his actions violate not just the Administrative Procedure Act, but also the constitutional separation of powers.

  52. David M says:

    @Hans:

    Again, that is just a ridiculous and laughable point to try and make. You can’t possibly be so clueless about the political or legal systems that you don’t know it’s a bogus claim. Pathetic.

  53. HarvardLaw92 says:

    @Hans:

    While you’re at it, Brandeis, I have a case for you to consider, delivered by a unanimous Supreme Court. I think you’ll find it pertinent:

    Heckler v. Chaney, 470 U.S. 821 (1985)

    Specifically, this section, which I imagine you will find relevant, given your obsessive focus on APA (emphasis mine):

    An agency’s decision not to take enforcement action is presumed immune from judicial review under 701(a)(2). Such a decision has traditionally been “committed to agency discretion,” and it does not appear that Congress in enacting the APA intended to alter that tradition. Accordingly, such a decision is unreviewable unless Congress has indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standards for defining the limits of that discretion. “

    Your ball, McFly … 😀

  54. Neil Hudelson says:

    @Hans:

    I’m curious as to why Hans Bader the blogger spent quite a bit of time trying to prove that politifact was an untrustworthy site. Hans the commentor who copies and paste’s Hans Bader without attribution uses to politifact to “prove” his argument.

    Interesting, that.

  55. Hans says:

    @David M:

    You have no rational arguments, only insults. I wonder what that says about the weakness of your position. By contrast, I have cited a ton of relevant precedents in my comments above. And, of course, an Article III judge disagrees with you as well.

    http://www.examiner.com/article/people-have-standing-to-challenge-obama-s-unconstitutional-immigration-action

    Even newspapers sympathetic to an amnesty have expressed concern about the legality and propriety of President Obama’s action, including the staunchly pro-immigration Wall Street Journal, and the Washington Post, which supports amnesty legislation, and is so liberal that it has not endorsed a Republican for President since 1952):

    http://online.wsj.com/articles/i-barack-1416531449

    http://www.washingtonpost.com/opinions/on-immigration-the-gop-should-make-the-next-move/2014/11/20/99c10984-70e8-11e4-8808-afaa1e3a33ef_story.htm

  56. Jimbo OPKS says:

    @C. Clavin: CC, you asked for a law to be passed. I suggested the one I would prefer. Absent the law you would prefer and the one that I would prefer we are left with the status quo. The President has taken an oath to uphold the status quo in the absence of new law.

  57. HarvardLaw92 says:

    @Hans:

    You have cited no precedent, at all, in which a state has been granted standing to challenge federal authority with respect to immigration. You keep trying to piggyback these unrelated areas of the law onto federal prerogatives, which you seem determined to avoid addressing.

    In fact, you don’t seem to have done much of anything at all beyond cut and paste blog posts and link to newspaper articles (always a great source of legal precedent, those …) arguing a political point (as opposed to a legal one).

    You are making a political argument by trying to present a (flawed) legal argument, and not doing a very good job of either one.

    I would imagine that is why you ended up a pundit instead of a lawyer. Constructing real, substantive legal arguments is difficult. Bloviating about politics is easy.

  58. C. Clavin says:

    @Jimbo OPKS:
    You suggested the impossible and the unworkable.
    You’ll have to provide a link to where the President took an oath to uphold the status quo.
    That is, apparently consistent with your character, also impossible and unworkable.

  59. Jimbo OPKS says:

    @LaMont: I wa@Mu: Not really. I hear all the time how McDonalds can double its salaries without significantly affecting Big Mac prices. Paying higher wages in the fields or improving harvesting machinery is a small price to pay for protecting our borders. Tight wage markets are the absolute best way to improve the lot of lower skilled workers. Anyone who is advocating this President’s lawless actions supports screwing the working man and woman.

  60. David M says:

    @Hans:

    I was not addressing the legal part of your argument, as HarvardLaw92 appears to have that covered.

    You’ve repeatedly claimed that statements by Obama that it would be best if immigration reform was addressed by congress and not be executive action to be some sort of binding statement, which is just flat out garbage. There is no point to bringing up those statements in a discussion regarding the legality of the actions, as they are purely political theater. You know this, which is why the only appropriate response to this drivel is ridicule.

  61. HarvardLaw92 says:

    @Jimbo OPKS:

    I hear all the time how McDonalds can double its salaries without significantly affecting Big Mac prices

    From whom, exactly? McDonalds corporate doesn’t pay the people flipping burgers. Franchisees do.

    Paying higher wages in the fields or improving harvesting machinery is a small price to pay for protecting our borders.

    Is paying higher prices at the grocery and the restaurant acceptable as well? Because you almost certainly will.

  62. superdestroyer says:

    @C. Clavin:

    The only bill that President Obama (or any president from the Democratic Party) is one that would lead to the ending of conservative politics in the U.S., the extinction of the Republican Party, and the creation of a one party state.

    What is amazing is how progressives claim they do not want a one party state (http://www.vox.com/2015/2/17/8047957/hillary-clinton-opponents) yet constantly push government policies and public opinion that will quickly lead to a one party state. There is no chance for comprehensive immigration bill passing as long as it means an end to conservative politics and the middle class in the U.S.

  63. HarvardLaw92 says:

    @superdestroyer:

    Oh god, not that shite again …

  64. Hans says:

    @HarvardLaw92:

    I am not arguing for state authority to challenge federal immigration laws. I am arguing for state standing to challenge a President’s illegally thumbing his nose at the federal immigration laws duly passed by Congress (President Obama’s executive action violates at least three provisions of the federal immigration laws, as I discussed in one of the linked articles), if the President’s action has negative consequences for state officials and burdens a state administratively.

    So I have no idea why you keep demanding that I provide a precedent for a proposition I am not even arguing, when you inexplicably wrote:

    “You have cited no precedent, at all, in which a state has been granted standing to challenge federal authority with respect to immigration . . .”

    It is Obama who is challenging Congress’s authority over immigration, in the form of duly enacted immigration laws that the President is constitutionally bound to follow rather than rewrite.

    When a President oversteps his authority versus Congress or independent agencies, people who are adversely affected have standing to challenge the President’s action. See, e.g., the Supreme Court’s Youngstown decision against President Truman, and the D.C. Circuit’s ruling against President Clinton in Chamber of Commerce v. Reich (1996).

    States have no less standing to sue than ordinary people. Indeed, under the Supreme Court’s ruling in Massachusetts v. EPA, states enjoy “special solicitude” from the courts in standing analysis. States can sue the feds over allegedly illegal or unconstitutional executive action that burdens them, even when it does not compel them to do anything. See, e.g., Wyoming v. U.S. (10th Cir. 1998).

    The judge found that Obama’s action violates the APA. But there are other legal violations as well. Even newspapers that supported Obama’s comprehensive immigration reform push have in some cases said that his action was illegal or unconstitutional, as I noted above.

    Litigants can also challenge federal action even within an area of exclusive federal powers o exclusive federal jurisdiction, if the action violates other constitutional provisions or the APA, as cases like Eldredge make clear (by deciding such cases on the merits in divided rulings rather than dismissing for lack of standing).

  65. C. Clavin says:

    @superdestroyer:
    That’s nonsensical…if Republicans actually acted in the interests of a constituency, any constituency, besides old fat rich rural white guys then they would logically expand their base. How does expanding your base lead to extinction?
    C’mon…try a little harder than the same old tired saw….

  66. HarvardLaw92 says:

    @Hans:

    I’m not going to address (again) the first two/thirds of the same regurgitated garbage.

    The judge found that Obama’s action violates the APA

    Um, no, he didn’t. He temporarily enjoined the EO from being enforced. He hasn’t ruled on the merits at all yet.

    I imagine his explanation of why, in his opinion, he doesn’t have to obey Heckler in his eventual ruling will prove to be amusing.

    I’ll just note that you sidestepped addressing the clear language of Heckler entirely. Does, in your considered legal opinion, Heckler not apply to this scenario?

    If so, then why not? – and be specific …

  67. David M says:

    @Hans:

    I find this a more convincing on the legality.

    You also seem overly concerned with the possibility that undocumented immigrants might be eligible for any benefits, and given your viewpoint on government spending, I’m not sure if your opinions the legality can be separated from the spending. This was evident in your prior posts on Obamacare.

  68. Hans says:

    The judge found explicitly that the challengers had established a “likelihood of success on the merits” of their claim that the Obama administration had violated the APA. That is not a definitive or final ruling on the merits, but it is a provisional one. The judge explicitly addressed the “merits.”

    As the article above notes, “the judge said the Obama administration had failed to comply with basic administrative procedures [in the Administrative Procedure Act] for putting such a sweeping program into effect.”

  69. David M says:

    @Hans:

    Yes, we know the GOP won the lottery when they got this judge to rule on the case. Let’s not pretend a political ruling has any bearing on the legality of the issue.

  70. HarvardLaw92 says:

    @Hans:

    I did not ask what the article said. I asked you, in your much cited capacity as a lawyer (your assertion) why the immunity provisions of Heckler do not apply here. You’ve made much noise about being a lawyer, so act like one. Is a unanimous ruling from SCOTUS which directly concerns APA inapplicable here? If so, then why not. Step up and make an argument, man.

    Worst case, the administration just reissues the same directive in accordance with APA, IF APA APPLIES here, but the ball’s in your court. Why is Heckler inapplicable?

  71. C. Clavin says:

    @Hans:

    The judge found explicitly that the challengers had established a “likelihood of success on the merits” of their claim

    Which is the exact reason that the challengers went shopping for this particular activist Judge.

  72. Hans says:

    For those inclined to dismiss the judge’s ruling as “political” (even though it is carefully reasoned and runs for over 100 pages):

    If Obama’s action is legal, then why have even newspapers sympathetic to an amnesty expressed doubts about its legality and propriety — including the staunchly pro-immigration Wall Street Journal, and the Washington Post, which supports amnesty legislation, and is so liberal that it has not endorsed a Republican for President since 1952):

    http://online.wsj.com/articles/i-barack-1416531449

    http://www.washingtonpost.com/opinions/on-immigration-the-gop-should-make-the-next-move/2014/11/20/99c10984-70e8-11e4-8808-afaa1e3a33ef_story.htm

    The President himself used to admit that these immigration actions would be beyond his authority, as Factcheck.org has noted.

    http://www.factcheck.org/2014/11/obamas-immigration-amnesia/

  73. Jack says:

    The administration argued that Mr. Obama was well within long-established federal authority for a president to decide how to enforce the immigration laws.

    Long established? Is that why the president said 20+ plus times over 6 years that he couldn’t do it?

    Obama’s “policy change” goes well beyond policy and enters into the realm of legislation. He is not “selectively deferring” deportation, but granting SSN numbers and work permits. Under current law, the president nor DHS is permitted to perform that action unless and until the laws as currently written are changed. Barring a change, the executive could refuse to deport those deemed less dangerous, but they cannot summarily grant them administrative citizenship.

  74. stonetools says:

    @Hans:

    The President himself used to admit that these immigration actions would be beyond his authority, as Factcheck.org and PolitiFact have noted.

    And the majority of legal scholars have looked at this and found that yes, the President did have the authority to do as he has done all along.
    The president did not want to admit he had the power for political reasons. He wanted a permanent solution -comprehensive immigration reform through legislation-so he hoped that by insisting that he didn’t have the power, he would pressure the Republicans into passing legislation. As usual, he vastly overestimated the Republicans’ willingness to think long term and to pass compromise legislation in order not to lose Hispanic votes. Instead, the Republicans listened to their immigrant hating base and refused to take up the Senate immigration bill. The 2014 election removed any shred of hope that Congress could be pressured to pass comprehensive immigration reform, so the President gave up the pretense that he couldn’t issue executive orders on matter peculiarly within the President’s authority.
    Frankly, it would have been better that the President would have been honest about the extent of power from the beginning. Not for the first time, he outsmarted himself by thinking the Republicans would act rationally, like he would(Remember the whole silly Grand Bargain BS from 2011?). It seems lately he has learned that smash-mouth politics is what works with the current opposition. Would that he has learned that 5 or 6 years earlier! Better late than never, I guess…

  75. David M says:

    Here’s an alternative view that the actions did not violate the APA.

    You guys keep bringing up Obama’s statements that Congress should pass immigration reform as if they mean something. What you’re missing is that they only serve as a bright red flag that you’re not to be taken seriously, as you have nothing.

  76. Jack says:

    I guess when the next president with an (R) behind his name decides to make a policy that the IRS will not collect taxes from businesses, legal scholars will agree that action from congress isn’t necessary and that the president has full legal authority.

  77. C. Clavin says:

    @Hans:

    The President himself used to admit that these immigration actions would be beyond his authority

    He also said he was against marriage equality. Perhaps you have heard of the term; Bull-Shitting?
    Look…the President waited and waited for Republicans to act. In the complete absence of their action…he acted.
    Don’t like it…PASS A BILL!!!

  78. Jack says:
  79. Jack says:

    @C. Clavin: You keep saying

    PASS A BILL!!!

    You may not realize this while sitting in your mom’s basement, but there is current law that covers this issue.

  80. David M says:

    @Jack:

    Josh Blackman is not a credible source for legal analysis, given the fact he filed a brief stating he believes the Moops invaded Spain. He has shown he will say anything, no matter how ridiculous to help the GOP.

    He is free to make all the farcical arguments he wants, but there’s no reason to continue to pretend he’s interested an honest analysis of the issues.

  81. Jack says:

    @David M: If you took the time to read the link I posted, most of it is an extract from the decision, unless you are saying the ruling itself is poor legal analysis. Considering the judge used previous rulings like Heckler and Adams, I feel the decision is based upon solid ground.

  82. HarvardLaw92 says:

    @Hans:

    So that’s either an “I can’t” or an “I won’t” with respect to making an actual argument re: Heckler?

    Didn’t think so, but I had to give you a chance. Enjoy your blogging …

  83. HarvardLaw92 says:

    @Jack:

    Used Heckler? LOL, he twisted himself into knots trying to come up with a way around Heckler. The opinion was mediocre at best, but it was inventive. I’ll give the guy credit for having an active imagination.

  84. Moderate Mom says:

    @HarvardLaw92: I don’t have a pony is this race between you and Hans, but I do have a question. You have repeatedly questioned Hans claim of having graduated from Harvard Law. That’s fine, as I have no opinion (nor do I care) as to whether or not he is being truthful. I’m just wondering why anyone should believe that you, anonymously commenting as HarvardLaw92, attended Harvard Law? What makes your anonymous claim believable?

    For all we know, any degree you might possess could have come just as easily from the University of Phoenix.

  85. C. Clavin says:

    @Jack:

    I feel the decision is based upon solid ground

    Seriously?
    So when the Judge uses Fox News talking points like

    “there can be no doubt that the failure of the federal government to secure the borders is costing the states—even those not immediately on the border—millions of dollars of damages each year.”

    and

    “the states lose badly needed tax dollars each year due to the presence of illegal aliens.”

    you think that is well-considered?
    Justice by Fox News…I like it.

  86. Jack says:

    @HarvardLaw92: In Heckler, the Supreme Court indicated that an agency’s decision to “consciously and expressly adopt a general policy that is so extreme as to amount to an abdication of statutory responsibilities. ” would not warrant the presumption of unreviewability. Sounds spot on to me.

  87. HarvardLaw92 says:

    @Moderate Mom:

    You’re free to believe it or disbelieve it as you please. I get paid either way and I don’t lose any sleep, I assure you.

    He doesn’t speak like a lawyer, and he doesn’t construct arguments like a lawyer, which is why I keep goading / daring / shaming him to make an argument (as opposed to continuously regurgitating someone else’s). It’s my way of pointing out that he either can’t or he wont do so. In the end, both are equally damning IMO.

  88. HarvardLaw92 says:

    @Jack:

    Really? So the executive has completely stopped enforcing immigration law?

    News to me … You learn something new every day, I tell you what …

  89. HarvardLaw92 says:

    @stonetools:

    Agreed. When you’re a conservative that has BOTH Posners basically laughing your argument out of the room, it might be time to consider that you have gone off of the reservation.

  90. Jack says:

    @C. Clavin: So, because a judge says the same thing, probably based upon briefs submitted by conservatives, he’s a Fox News Justice? You really need to comment on something you understand. Has Doug written anything on basic math lately?

  91. Jack says:

    @HarvardLaw92: For these 4-5 million illegals? Yes. They have administratively become California’s version of sanctuary city on steroids, which is not what congress had in mind when they tasked them with the job.

    They are abdicating statutory responsibilities when it comes to everyone that falls within Jeh Johnson’s memo.

    From the decision “The Court finds that DAPA does not only constitute inadequate enforcement; it is an announced program of non-enforcement of the law that contradicts Congress’ statutory goals.”

  92. HarvardLaw92 says:

    @Jack:

    You evidently need to read up on prosecutorial discretion. If Congress feels that the laws are not being enforced to its liking, it has the power to enact restrictions on discretion. It has, to date, not done so despite having had decades of opportunity in which to act. Its lack of action has to be construed by the courts as an affirmative declaration of intent to accede discretion to the executive in its enforcement of the laws that Congress passes.

    Selectively enforcing responsibilities, especially in an environment where Congress has woefully underfunded the resources necessary for enforcement, is not “abdicating statutory responsibilities.” It is acknowledging reality and redirecting limited resources in a manner that is intended to produce the maximum benefit.

    You may disagree with the executives choices, and that is your right, but the premise that it has the discretion to determine how, and more importantly to what extent, it will enforce the laws that Congress passes is one of long standing doctrine. DHS has not stopped enforcing immigration law. More tot he point, the EO does not mandate that it do so. It extends the discretion to selectively enforce it. Not because I say so. Because it is so.

    This decision has to be viewed in the context of the partisan attitude that created it. It is not within the court’s purview to assert that an agency’s decision to selectively enforce laws is non-enforcement. It’s an all or nothing question. Legally, the opinion is weak, at best, and it’s almost certain to be smacked down by the appellate. That’s just the cold, hard truth.

  93. HarvardLaw92 says:

    @Jack:

    You really need to look deeper into this judge’s prior public statements concerning this policy. He’s been quite outspoken about his opposition. They selected his court for a reason – i.e. venue shopping. Realistically, he should have recused himself.

  94. David M says:

    @Jack:

    Congress has allocated funds to deport approximately 400,000 undocumented immigrants each year, which the executive is going to continue doing. The question is what to do with the other 11 million. If Congress does not like how the executive is implementing the law, they are welcome to reform the immigration laws. It’s kind of ridiculous to say they aren’t enforcing the laws, when Congress will not allocate funds to deport everyone and has tasked the executive branch with determining how best to use the limited funds they have.

  95. HarvardLaw92 says:

    @Jack:

    decides to make a policy that the IRS will not collect taxes from businesses

    You mean like the current system, wherein only a fraction of tax returns are audited, based on selection criteria designed to produce the maximum return on investment with respect to enforcement spending?

    Sounds oddly similar, don’t you think, and yet nobody is suing the IRS in an attempt to get more tax audits conducted.

    Evidently these people don’t care that the IRS is abdicating its statutory duty to collect all taxes owed to the United States government. Wonder why? Intellectual inconsistency? Hypocrisy?

  96. Jack says:

    @HarvardLaw92: The INA allows for 675k immigrants per year. Period. That, with some updates, is law. Obama and Jeh Johnson have administratively changed that to 4-5 million with the stroke of a pen. They are breaking the law. This has nothing to do with congress failing to act. Congress hasn’t added a new state to the union since 1959, but that doesn’t mean any old territory can simply claim to be a state because congress hasn’t acted. Nor does it mean courts can declare it’s “an affirmative declaration of intent to accede discretion to the executive in its enforcement.”

    If this administration can use “prosecutorial discretion” to all 4-5 million illegals to say, and give out SSNs, and work permits, what is to stop them from using prosecutorial discretion to legalize all 11.5 million illegals? Nothing. Prosecutorial discretion is just a term they are using for back-door amnesty. They are not weighing the merits of individual cases, they made a blanket decision not to even look at an entire group of people. People who broke US law.

    woefully underfunded the resources necessary for enforcement

    They had the funding to do it last year, the previous five years, and even less funding during the Bush years.

    it has the discretion to determine how, and more importantly to what extent, it will enforce the laws that Congress passes is one of long standing doctrin

    That is my point. They are not enforcing any laws for an entire group of people. ICE, which has become part of DHS, is tasked with “enforcing the nation’s immigration laws and ensuring the departure of removable aliens from the United States. ERO uses its Immigration Enforcement Agents (IEAs) to identify, arrest, and remove aliens who violate U.S. immigration law.” [Emphasis mine]

    This decision has to be viewed in the context of the partisan attitude that created it. It is not within the court’s purview to assert that an agency’s decision to selectively enforce laws is non-enforcement.

    That is exactly what the Supreme Court did in Heckler. Heckler v. Chaney, 470 U.S. 821 (1985), is a case heard before the United States Supreme Court. The case presented the question of the extent to which a decision of an administrative agency, here the Food and Drug Administration, to exercise its discretion not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act. [Emphasis mine]http://en.wikipedia.org/wiki/Heckler_v._Chaney

    This administration has decided that DAPA “qualified individuals”, and I use that term loosely as will the administration, are not subject to enforcement.

  97. Jack says:

    @HarvardLaw92:

    You mean like the current system, wherein only a fraction of tax returns are audited, based on selection criteria designed to produce the maximum return on investment with respect to enforcement spending?

    No, I mean specifically what I said. An administrative decision by the IRS that effectively allows businesses to not pay ANY, zero, zip, nada taxes. It’s an enforcement measure, because the IRS has limited resources and now that they have that whole Obamacare thing to deal with, they decided, selectively, to deal with more important tax issues and provide superior customer service allowing their call centers to have people on hold for less than 5 minutes. You know, because the IRS has a bad reputation and needs to be more customer focused.

  98. HarvardLaw92 says:

    @Jack:

    So you are asserting that there is no business, anywhere, that should be paying taxes, but doesn’t because of fraud, and gets away with it because the IRS only audits a fraction of tax returns?

    It’s an enforcement measure, because the IRS DHS has limited resources and now that they have that whole Obamacare Congressional underfunding thing to deal with, they decided, selectively, to deal with more important tax immigration issues

    FIFY. Isn’t it great when we can all agree?

  99. Jack says:

    @David M: This administration has not asked for more funding for deportations…that I am aware of. They have decided to stop enforcement on 4-5 million.

    Obama has promised to veto any effort to dismantle his immigration executive actions. Period. He hasn’t said, he would veto any bill that did not properly fund deportation of more than 400,000 illegals per year.

  100. David M says:

    @Jack:

    Prosecutorial discretion does not have to be on a case by case basis, it can be widely applied, and is widely applied every day, all the time, on a huge range of issues. Arguing otherwise is ridiculous.

    The 4-5 million that this order applies to weren’t likely to be deported anyway, and arguably are the ones that should be deported last. This is just a responsible, moderate action to make the best of an issue that the GOP refuses to address.

  101. Jack says:

    @HarvardLaw92: I am not saying that. You are.

    I’m saying that a president may decide that businesses will invest more in creating jobs, reducing the number of under/unemployed if they didn’t have to pay taxes. And thus, administratively made the decision to stop enforcement action on business taxes.

    The point I am making, and you are missing, is that this decision would be as equally legal.

  102. David M says:

    @Jack:

    The point I am making, and you are missing, is that this decision would be as equally legal.

    Care to back that up with a cite from a reputable legal source? If not, we’ll unfortunately be forced to assume it’s not true.

  103. HarvardLaw92 says:

    @Jack:

    The case presented the question of the extent to which a decision of an administrative agency, here the Food and Drug Administration, to exercise its discretion not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act.

    Yes, I know. The effect of the ruling was that FDA couldn’t be forced to act, because it had the discretion to decide not to.

    You do get that, right? SCOTUS, in a unanimous ruling, held that a federal agency can not be forced by APA to act when it selectively decides not to. Heckler undermines your position, to the extent that your judge here had to come up with an inventive, but tortured, way to assert that it doesn’t apply.

    Now, when you have a case that the administration has completely, totally and absolutely refused to enforce immigration laws at all – that it is completely ignoring them across the board – which you don’t, get back to me. Until then, the executive has the power to decide how and to what extent it wants to enforce immigration laws.

  104. HarvardLaw92 says:

    @Jack:

    I agree that it would be equally legal. It’s nice when we can agree.

  105. Jack says:

    @David M: Thus, my IRS example would also be legal.

    I agree, prosecutorial discretion makes it perfectly lawful for this administration to target finite immigration-enforcement resources against illegal aliens who commit serious crimes while overlooking millions of illegal aliens who violate “only” the immigration laws (plus identity-fraud offenses typically committed as those aliens illegally stay and work here).

    However, he is not saying were are simply going to stop prosecuting them. Prosecutorial discretion does NOT allow him to grant SSNs or give them work permits.

    If the Justice Department decides it is going to target its anti-drug-trafficking resources against big time heroin and cocaine distributors, that does not mean that personal possession and sale of small amounts of those drugs is now legal — or, indeed, that the government should facilitate drug possession and sales.

    It does not mean that those crimes the executive chooses not to enforce are now no longer crimes. Prosecutorial discretion has never meant that the passive act of non-enforcement has the legal effect of repealing criminal laws enacted by Congress.

    That is an utter perversion of prosecutorial discretion and a blatant usurpation of congressional power. Only Congress has the power to repeal criminal laws and confer positive legal benefits on non-Americans.

  106. Jack says:

    @HarvardLaw92:

    Heckler undermines your position, to the extent that your judge here had to come up with an inventive, but tortured, way to assert that it doesn’t apply.

    The court specifically cite the below, from Heckler, in its decision. Thus, Heckler does not undermine my argument.

    The Court though emphasized that the presumption of unreviewability is rebuttable where (1) an agency declines to act based “solely” on its belief that it lacks jurisdiction, or (2) where an agency “consciously and expressly” adopts a policy that is so extreme that it represents an abdication of its statutory responsibilities.

  107. Jack says:

    @David M:

    Care to back that up with a cite from a reputable legal source? If not, we’ll unfortunately be forced to assume it’s not true.

    Every legal brief this administration has written to support this administrative policy.

  108. HarvardLaw92 says:

    @Jack:

    Prosecutorial discretion does NOT allow him to grant SSNs or give them work permits.

    Do you have a reputable source which establishes that these people are being granted SSNs (as opposed to ITINs) and work permits?

    From what I can gather, DAPA applies only to the parents of US citizens / permanent residents, doesn’t grant permanent status and comes with a laundry list of qualification criteria.

    DACA is explicitly termed as being temporary, not offering a pathway to citizenship and not granting legal status.

    Do you have evidence that either of these programs is creating permanent residents with the right of remain?

    If not, it’s pretty clear that these are temporary enforcement deferrals with temporary accommodations, which is well within the boundaries of discretion.

  109. Jack says:

    @HarvardLaw92:

    Do you have a reputable source which establishes that these people are being granted SSNs (as opposed to ITINs) and work permits?

    Undocumented workers who filed taxes previously with an ID number could amend those returns once they have received their Social Security number, Koskinen said.

    Will I be able to get a Social Security number?

    Yes! Once your work permit arrives, look up your local Social Security office at http://www.ssa.gov. It is recommended that, when you go to Social Security to apply for your number, you also take your birth certificate and other identification documents to prove your identity.
    http://www.nilc.org/dapa&daca.html

    Deferred action under expanded DACA or DAPA will be granted for a renewable period of three years. The work permit you receive will also be for a renewable period of three years.
    http://www.nilc.org/dapa&daca.html

    I’m guessing that since the National Immigration Law Center is giving this advice they have had a discussion or two with administration officials.

  110. HarvardLaw92 says:

    @Jack:

    Yea, we have been through that already.

    (1) an agency declines to act based “solely” on its belief that it lacks jurisdiction

    Hasn’t happened. Inapplicable.

    (2) where an agency “consciously and expressly” adopts a policy that is so extreme that it represents an abdication of its statutory responsibilities.

    All or nothing question. An agency that is partially enforcing a statute has not abdicated its statutory responsibilities.

    I get that, in your opinion, if ICE isn’t deporting every single undocumented immigrant in the US, it has abdicated its duty, but that’s just not how this works. The courts give broad leeway to executive agencies with regard to discretion. For them to invoke 5 U.S.C Chapter 7, the agency in question has to have completely abrogated its duty to the point where it is effectively taking no action in pursuit of enforcement at all.

    You are taking the flawed opinion of a biased court judge as being unerring, final legal gospel. That is a mistake.

    You and this judge evidently want every single undocumented person deported, and that’s just not going to happen. If you don’t believe me, you are welcome to watch as the appellate smacks this clown down. It will happen, trust me on this one.

  111. HarvardLaw92 says:

    @Jack:

    Ok, thanks. Now address the rest of the comment?

  112. David M says:

    I can see how a GOP administration choosing to only audit Fortune 500 companies and allowing others to apply for an audit waiver for the next few years would be similarly legal. But the administration isn’t proposing to stop deportations completely, so it seems to significantly different.

  113. Jack says:

    @HarvardLaw92:

    You and this judge evidently want every single undocumented person deported, and that’s just not going to happen. If you don’t believe me, you are welcome to watch as the appellate smacks this clown down. It will happen, trust me on this one.

    No, I want every illegal immigrant to remain eligible for deportation, they can still “selectively enforce” while focusing on the worst illegals. But while they are working, so studiously on those guys, if another drops in their lap, deport them.

  114. Jack says:

    @HarvardLaw92: Which comment was not fully addressed?

  115. Jack says:

    @David M:

    I can see how a GOP administration choosing to only audit Fortune 500 companies and allowing others to apply for an audit waiver for the next few years would be similarly legal. But the administration isn’t proposing to stop deportations completely, so it seems to significantly different.

    Why? They are “selectively” removing a portion of taxpayers (businesses), from the larger pool of taxpayers. Just like this administration is “selectively” removing a portion of illegals from the larger pool of illegals.

  116. HarvardLaw92 says:

    @Jack:

    Then you have your wish. Every single one of these people under DACA or DAPA, IF granted, receive only temporary deferral from deportation. Granting of deferral is entirely discretionary, is revocable at any time, confers no guarantee of renewal, may not be appealed or contested if the application is denied, does not confer legal status and is not a path to citizenship. They remain deportable.

  117. HarvardLaw92 says:

    @Jack:

    You mean besides everything after the first sentence? 😀

  118. Jack says:

    @HarvardLaw92:

    I get that, in your opinion, if ICE isn’t deporting every single undocumented immigrant in the US, it has abdicated its duty, but that’s just not how this works. The courts give broad leeway to executive agencies with regard to discretion. For them to invoke 5 U.S.C Chapter 7, the agency in question has to have completely abrogated its duty to the point where it is effectively taking no action in pursuit of enforcement at all.

    Again, if this administration can use “prosecutorial discretion” to all 4-5 million illegals to say, and give out SSNs, and work permits, what is to stop them from using prosecutorial discretion to legalize all 11.5 million illegals? Nothing. They could still deport felons and say they are focusing only on them.

    Please, tell me the difference?

  119. Jack says:

    @HarvardLaw92: Please, which post? We’ve been going at this for awhile.

  120. Jack says:

    @HarvardLaw92:

    Then you have your wish. Every single one of these people under DACA or DAPA, IF granted, receive only temporary deferral from deportation. Granting of deferral is entirely discretionary, is revocable at any time, confers no guarantee of renewal, may not be appealed or contested if the application is denied, does not confer legal status and is not a path to citizenship. They remain deportable.

    They are not temporary if they are getting SSNs. Most every state also gives driver’s licenses. And due to motor voter, they will be registered to vote because they, administratively, look no different than you or I. Thus, what in reality is temporary about these programs?

  121. HarvardLaw92 says:

    @Jack:

    The one you replied to. I click reply specifically in order to put that handy “go back to the source” link in.

    That said, I think we’re on the same page. You don’t want them granted legal status or a path to citizenship. I think that’s a reasonable position to take, and you are in fact getting that. They’re not eligible for either one.

  122. HarvardLaw92 says:

    @Jack:

    They are temporary. ICE guidance for both programs is explicit about that point. Neither program confers either legal residence or a path to citizenship. DAPA isn’t even in effect yet.

    Consider: Consideration of Deferred Action for Childhood Arrivals

    Specifically:

    “On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status. NOTE: On November 20, 2014, the President made an announcement extending the period of DACA and work authorization from two years to three years.”

    I’m not sure how much more explicit that statement could be.

  123. Jack says:

    That said, I think we’re on the same page. You don’t want them granted legal status or a path to citizenship. I think that’s a reasonable position to take, and you are in fact getting that. They’re not eligible for either one.

    If you have a SSN, a state ID, and a vote, what is the difference? If you can’t tell, then neither can DHS. That is the end game this administration and this policy is forging.

    The one you replied to. I click reply specifically in order to put that handy “go back to the source” link in.

    My link answered all those questions although I did not specify the answer to each. I felt answering the first was the priority.

    And now my question?

    If this administration can use “prosecutorial discretion” to all 4-5 million illegals to say, and give out SSNs, and work permits, what is to stop them from using prosecutorial discretion to legalize all 11.5 million illegals? Nothing. They could still deport felons and say they are focusing only on them.

  124. Jack says:

    @HarvardLaw92:

    Consider: Consideration of Deferred Action for Childhood Arrivals…..

    So, they administratively do DACA, then DAPA, than DALI (Deferred Action for Law-abiding Illegals). If they can do one then the next, and no court halts them, are they not able to take the position that congress and the courts have failed to act, so therefore their actions are legal?

  125. Jack says:

    @HarvardLaw92:

    Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.

    It’s a policy, and not a law. This administration can change policy with a phone and a pen…just like they change laws they don’t like.

  126. jukeboxgrad says:

    You know the old saying, everyone has to make a living.

    People familiar with Bader’s track record understand that it’s a mistake to take him seriously. Link, link. Bader and I go back at least five years.

  127. David M says:

    @Jack:

    It is still illegal for them to vote. What part of temporary and revocable doesn’t make it clear how this isn’t permanent?

    Now it’s designed to be a temporary step that won’t be necessary after the immigration system is reformed. So if you’re worried about this being indefinite, shouldn’t you be pushing the GOP to pass a bill?

  128. HarvardLaw92 says:

    If you have a SSN, a state ID, and a vote, what is the difference? If you can’t tell, then neither can DHS. That is the end game this administration and this policy is forging.

    Registering to vote requires proof of citizenship. Neither a driver license nor a SSN is sufficient to meet that burden. If the states aren’t checking, or their processes allow for the registration of ineligible voters, I’d say you need to take that up with the states. Voter registration is neither a federal function nor a federal responsibility.

    If this administration can use “prosecutorial discretion” to all 4-5 million illegals to say, and give out SSNs, and work permits, what is to stop them from using prosecutorial discretion to legalize all 11.5 million illegals? Nothing. They could still deport felons and say they are focusing only on them.

    Really? You mean beyond common sense? You actually expect me to dignify that with a response? I’m trying to work with you here, but the anti-government tinfoil thing I dismiss as a matter of policy.

  129. Jack says:

    @David M:

    Now it’s designed to be a temporary step that won’t be necessary after the immigration system is reformed. So if you’re worried about this being indefinite, shouldn’t you be pushing the GOP to pass a bill?

    Congress did act. It’s not like there are no immigration laws on the books.

    That law says that everyone that comes here illegally gets deported.

  130. Jack says:

    @HarvardLaw92: That’s a non answer counselor.

    The fact is, this administration could do it.

  131. HarvardLaw92 says:

    @Jack:

    The fact is that any administration could do it. They could also launch missiles at Alabama (and I, for one, wouldn’t argue with them if they did …), but they aren’t going to do it. Like I said, I’ll work with you, but I don’t entertain paranoia.

  132. David M says:

    @Jack:

    So? The speed limit is 60 on the highway near me as well, but not everyone speeding is ticketed.

  133. Jack says:

    @HarvardLaw92:

    The fact is that any administration could do it. They could also launch missiles at Alabama (and I, for one, wouldn’t argue with them if they did …), but they aren’t going to do it. Like I said, I’ll work with you, but I don’t entertain paranoia.

    It’s not paranoia if this administration is actually striving to do just that. The president ran on overhauling immigration. He couldn’t get it done legislatively, so he decided to do it administratively. Do you really believe this is not what the pro amnesty folks want? The same folks he is listening to?

    If I had made the same argument I’m making now after DACA, that there would be more administrative broadening of the laws, you probably would have called me paranoid then.

    Yet, here we are.

    Will you remember this conversation the next time he broadens the policy?

  134. HarvardLaw92 says:

    @Jack:

    That law says that everyone that comes here illegally gets deported.

    18 U.S.C. § 1111 stipulates that anyone found guilty of first degree murder must be sentenced to life imprisonment or be put to death.

    Yet federal prosecutors cut deals to avoid prosecution on murder all the time. I know. I was one. It’s the nature of the beast. Discretion demands that you do what you can with what you have to work with.

    You said above that you didn’t want them to be deported. You just wanted them to remain deportable. Those are conflicting statements, so which is it?

    You’ll never get a situation where every illegal gets deported. That’s fact. You have to deal with that and accept that.

    You’ve already gotten the latter. They remain deportable, so what exactly are you after here?

  135. Jack says:

    @David M:

    So? The speed limit is 60 on the highway near me as well, but not everyone speeding is ticketed.

    Yet, no mayor/governor/attorney general has stated that we will not prosecute speeders only going 65 or below, effectively making speeding legal.

    When you fail to stick to a standard, the new acceptable becomes the standard, leading to an ever increasing standard.

    Stick with me for a moment. In my job, if I have a “show time” of 8:00 am and I show up at 8:01, I am late. If no one says anything, then 8:01 becomes the new standard, and 1 minute past the new standard is now acceptable. Leading to 8:02, 8:03, 8:04, etc. By the time I get to 8:15 or 8:30, if my boss pulls me aside and tells me 8:00 is the appropriate show time, I explain that by his non enforcement, he has allowed the standard to broaden due to his inaction. And, if he is going to enforce that stand on me, then he must enforce that standard on everyone, without exception.

  136. David M says:

    @Jack:

    You missed the point, ticketing and deporting everyone are equally unrealistic.

  137. Jack says:

    @HarvardLaw92:

    Yet federal prosecutors cut deals to avoid prosecution on murder all the time. I know. I was one. It’s the nature of the beast. Discretion demands that you do what you can with what you have to work with.

    Prosecutors cut deals for all manner of reasons. They also add on lesser crimes to get people to plead to something. The fact remains, no US attorney would get away with setting a broad policy saying they will not prosecute any one group, say Italians, suspected of first degree murder. That person would not be a US attorney for long.

    You said above that you didn’t want them to be deported. You just wanted them to remain deportable. Those are conflicting statements, so which is it?

    Eligible for deportation comes with it certain negatives. Like a dishonorable discharge. They are ineligible to work legally, ineligible to file taxes, ineligible for state and federal programs, etc.

    You’ll never get a situation where every illegal gets deported. That’s fact. You have to deal with that and accept that.

    But that is the end goal of our immigration policy. To use Dave M’s analogy, we will never catch every speeder. Does that mean we stop enforcing speed limits? Stop ticketing speeders that are under a certain speed but are actually speeding?

  138. Jack says:

    @David M: No. I got your point. Again, no mayor/governor/attorney general has stated that we will not prosecute speeders only going 65 or below, effectively making speeding legal. This is exactly what DACA and DAPA does.

  139. David M says:

    @Jack:

    But once we acknowledge we aren’t going to deport all undocumented immigrants, there is a real question about what to do with people who are still here. They are working and contributing to our country, and basic humanity means we shouldn’t ignore the issue. As best I can understand, your objection is to not making their lives as miserable as possible.

  140. Jack says:

    @David M:

    As best I can understand, your objection is to not making their lives as miserable as possible.

    You mean we shouldn’t treat them like criminals? Are there any other laws we should get rid of because there are those that while technically are law breakers, they are working and contributing to our country? Don’t crack dealers contribute to society? They pay workers to distribute. They pay local taxes on their purchases. They are doing a community service…based upon supply and demand.

    I know, we should administratively stop prosecuting all crack dealers, because they contribute to society.

    How about sexual deviants that don’t actually touch other people. Peepers, child porn producers? If they have a job, contribute to society, pay taxes, shouldn’t they be allowed to continue to break the law or their actions be made legal through administrative “prosecutorial discretion”

    I know, we should administratively stop prosecuting all sexual deviants, because they contribute to society.

    By the way, in case anyone wants to use the above out of context, it’s sarcasm.

  141. HarvardLaw92 says:

    @Jack:

    We’re going in circles here and getting nowhere. Nothing personal, but it has just gotten pointless. Have a nice evening.

  142. David M says:

    @Jack:

    Do not see a difference between the examples you listed and undocumented immigrants? It’s a civil offense / misdemeanor at worst.

  143. Jack says:

    @David M: I see them as victim or victimless crimes. I listed victimless crimes…unless you are suggesting that illegal immigration is not a victimless crime. You aren’t are you?

  144. jukeboxgrad says:

    no mayor/governor/attorney general has stated that we will not prosecute speeders only going 65 or below … Does that mean we stop enforcing speed limits? Stop ticketing speeders that are under a certain speed but are actually speeding?

    You are describing what never happens except when it actually happens:

    How Maryland’s Speed Camera Law Works … You must be going at least 12 miles per hour over the posted speed limit to get a ticket.

  145. superdestroyer says:

    @C. Clavin:

    Importing more third world immigrants who are eligible for ethnicity and race-based set asides does not expand the base for the more conservative party. Expanding government spending and increasing taxes does not help the more conservative party. Making a house in a good neighborhood with good schools more expensive does not help the more conservative party.

    However, importing millions of third world immigrants and engineers trained in India and China does create massive economic windfalls for those old rich white guys you seemed concerned about. How does lower the pay of STEM workers and forcing American citizens out of blue collar jobs good for the middle class?

  146. C. Clavin says:

    @superdestroyer:

    Importing more third world immigrants who are eligible for ethnicity and race-based set asides

    Well if you are going to be a racist douche-bag…then no…widening your base is not an option.

  147. superdestroyer says:

    @C. Clavin:

    so you argument is that a conservative party cannot exist or are you saying that somehow a conservative party can fit separate-and-unequal treatment by the government into its views? I understand how progressives feel no need to be consistent in what they believe that that separate-and-unequal is not only legal in their view but good government policy but see no reason for any form of conservative party to believe the same thing.

  148. Ken says:

    @superdestroyer: What is amazing is how progressives claim they do not want a one party state

    Maybe you aren’t aware of it, or maybe you just don’t care, but you do know that you sound like Rain Man with this schtick, don’t you?

    Four minutes to Wapner

  149. jukeboxgrad says:

    Rain Man

    Number of times superdestroyer has used the term “one party state” on this site: roughly 321.

    I also note this comment by James Joyner, 11/8/12:

    @superdestroyer: This is your last warning on the one-party state meme. We’re all tired of it. Find some new material or take it elsewhere.

  150. Wr says:

    @superdestroyer: I think his argument is that you’re a racist douche bag. It’s really not that hard to follow.

  151. Ken says:

    @jukeboxgrad: Hrm, my original reply was sucked into the spam trap. Odd, it only had one link in it. Let me try again:

    I do remember that comment from JJ. I even commented on it last year

  152. Ken says:

    @jukeboxgrad: Odd, my comments keep getting flagged as spam, despite having only a single link, and despite it being a link to this site.

    One last try, I suppose.

    If you add in “one party system” “single party state” and a few other variants, it’s likely more than 500. I also remember that comment from JJ – I commented on it last year (link goes to the comment before mine, perhaps the spam filter is seeing that I’m linking to a comment that has multiple links itself?)

  153. jukeboxgrad says:

    my comments keep getting flagged as spam

    My crystal ball says you’re using the Reply feature to reply to me. Don’t do that. For some bizarre reason, the result is what you experienced. It’s been this way for years.

    Your new comment worked because you typed “@jukeboxgrad” instead of generating that automatically.

    If you add in “one party system” “single party state” and a few other variants, it’s likely more than 500.

    Interesting, thanks.

    I commented on it last year

    Great collection, thanks. I will reference that comment in my future comments on this subject.

    perhaps the spam filter is seeing that I’m linking to a comment that has multiple links

    I’m pretty sure that’s not the problem.

  154. superdestroyer says:

    @Ken:

    But the question is if the U.S. does pursue policies that eliminate the more political conservative policy and pursues policies that will encourage ethnic and racial groups to vote as a block along ethnic and racial lines, then maybe there should be some thought of what the long term impacts are.

    Everyone who has looked at comprehensive immigration reform, the dream act, or anything that liberalizes immigration and increases the number of immigrants from the third world is a huge win for the Democratic Party and reduces the ability of conservatives to win elections.

  155. superdestroyer says:

    @Wr:

    I always find it odd that progressives have been so successful in defining racism that now when the goverment does treat everyone as equal it is racist but when the government uses separate and unequal standards that are based on race it is good government policy.

    Image what the U.S. will be like when more than 50% of the population is eligible for a racial or ethnic set aside while the U.S. has one dominant political party. I guess it will be similar to what progressives are arguing about lawsuits today: there will be no way for anyone who is adversely affect from getting standing to sue.

  156. Jack says:

    And There It Is !! – Democrat Rep Louis Gutierrez States Illegal Alien “Militancy” Will Result In Increased Illegal “Voter Registration, Voter Participation and Voter Anger”…

    https://www.youtube.com/watch?v=UqZa3W8gPis

    As if that wasn’t the plan all along, democrat hypocrites. But I repeat myself.

  157. jukeboxgrad says:

    Will Result In Increased Illegal

    That last word is yours, not his. Why do you make sh*t up?

  158. David M says:

    @Jack:

    Of course Jack is lying about what Rep Louis Gutierrez said, which should surprise no one. He was pretty pathetic even for a GOP troll on this thread, his petulant whining basically amounted to willful ignorance of what basic words mean in the English language, and then repeating ‘bbbbut, Obama”. I’m reminded of the Obamacare debates, when the GOP commenters would refuse to address the actual policies, and just whined about trivial nonsense.

  159. Moderate Mom says:

    @HarvardLaw92: Registering to vote in the State of Tennessee does not require proof of citizenship. You just check a box saying you’re an American citizen as well as a citizen of the State of Tennessee and are or will be 18 at the time of the next election. You affirm that all your information is correct when you sign the registration form. That’s it – no proof of citizenship required.

    Can you please tell me what states require proof of citizen ship in order to vote? I can’t imagine that a Red State like Tennessee is more lax than other states in their requirements to register to vote.

  160. Ken says:

    @superdestroyer: But the question is blah blah blah racist one party state conspiracy crap

    You’re not going to fool me – I know what happens when you try to have a rational conversation with Rain Man

    Four minutes to Wapner

  161. superdestroyer says:

    @jukeboxgrad:

    What is amazing is that progressives constantly make the same form of comments ” Go Team Blue, we’re going to win, win, win” without any thought to the effects on governance, policy, the economy, or social life of Team Blue winning big and getting itself into a position of not being able to lose. What happens in the future when Team Blue progressives, after a couple of decades of witches hunts, have no one left to hunt and no disagreements are allowed to occur.

    At least progressives should be able to view all of the policy and governance proposals and see if any of them contradict with each other such as the desire to increase legal immigrant to the U.S. with the desire to lower greenhouse gas emissions. But it seems that cheering to Team Blue limits progressives ability to actually think about the future. When a progressive’s response to every issue to to cream “hater” then what is the real future to politics in the U.S.?

  162. superdestroyer says:

    Jukeboxgrad

    What is amazing is that progressives constantly make the same form of comments ” Go Team Blue, we’re going to win, win, win” without any thought to the effects on governance, policy, the economy, or social life of Team Blue winning big and getting itself into a position of not being able to lose. What happens in the future when Team Blue progressives, after a couple of decades of witches hunts, have no one left to hunt and no disagreements are allowed to occur.

    At least progressives should be able to view all of the policy and governance proposals and see if any of them contradict with each other such as the desire to increase legal immigrant to the U.S. with the desire to lower greenhouse gas emissions. But it seems that cheering to Team Blue limits progressives ability to actually think about the future. When a progressive’s response to every issue to to cream “hater” then what is the real future to politics in the U.S.?

  163. jukeboxgrad says:

    progressives constantly make the same form of comments

    The great thing about your comments is how they are never in “the same form.”

  164. Jack says:

    @jukeboxgrad:

    That last word is yours, not his. Why do you make sh*t up?

    Do you not understand what quotations are for? I specifically use ” ” symbols around the words or phrases that people use.

    Here is the exact wording of my post above:

    Democrat Rep Louis Gutierrez States Illegal Alien “Militancy” Will Result In Increased Illegal “Voter Registration, Voter Participation and Voter Anger”…

    Please, go back and refresh your 9th grade English.

  165. HarvardLaw92 says:

    @Moderate Mom:

    Tennessee back checks citizenship post registration, and if citizenship is in doubt, the potential voter is required to supply proof of citizenship within 30 days, otherwise their registration is voided. Other states perform similar checks, and every state requires that a potential voter be a citizen in order to register.

    That having been said, as I noted above, voter registration is not a federal responsibility. It’s reserved to the states. As I suggested above, if you have questions or concerns with ineligible voters slipping through the registration process, you’ll need to take that up with the states.

    Are you suggesting that the federal government adjust immigration policy because states are apparently incapable (in your view) of verifying the citizenship of people who seek registration as voters?

  166. al-Ameda says:

    @superdestroyer:

    What is amazing is that progressives constantly make the same form of comments ” Go Team Blue, we’re going to win, win, win” without any thought to the effects on governance, policy, the economy, or social life of Team Blue winning big and getting itself into a position of not being able to lose.

    LOL!
    especially the “without any thought to the effects on governance, policy, the economy, or social life of Team Blue” part.
    Republicans have, for the past 5 years, completely rejected the idea of responsible governance, and in fact engineered 2 government shutdowns and shrugged off the potential effects of a federal default.

  167. David M says:
  168. Deserttrek says:

    @C. Clavin: enforce the existing laws and ship ILLEGAL ALIENS back to whatever country they came from .. they are not a boost to the economy, if they were then they can be boosting their own countries economies

  169. grumpy realist says:

    @Jimbo OPKS: You mean aside from the fact that your suggested bill has some Constitutional problems with it?

    You can’t deprive people of federal benefits based on what their parents did. Back to the drawing board.

  170. grumpy realist says:

    @Hans: Just as the birthers kept running around claiming they had standing to force President Obama to produce his “long-form” birth certificate?

    “Logically” doesn’t mean whatever you make up out of your head. Try stare decisis and legal precedent, please.

  171. superdestroyer says:

    @al-Ameda:

    I have always found it odd that “good governance” from Team Blue’s POV means that conservatives commit political suicide while also lowering the standard of living of middle class Americans. When “good governance” means one party state, then what is the point of elections or political discussions?

  172. al-Ameda says:

    @superdestroyer:

    I have always found it odd that “good governance” from Team Blue’s POV means that conservatives commit political suicide while also lowering the standard of living of middle class Americans.

    “Good Governance” is definitely not a hallmark of the current Team Red.

    I find it very interesting that conservatives have consistently opposed Obama’s economic recovery program, which clearly has been effective – over 50 consecutive months of economic growth, a reduction in the unemployment rate from 10% to 5.6%, an increase in the DJIA from less than 9,000 to over 17,000, and a consistently low inflation rate – all which was, and is, beneficial to middle class Americans.

    Conservatives shut down government twice in the past five years, and were willing to leverage their demands against a default on federal debt – none of which benefits middle class Americans.

  173. Blue Galangal says:

    @Moderate Mom: In Ohio, the voter registration form asks for your driver’s license. This may not seem to be requesting proof of citizenship, except in order to get an Ohio driver’s license you must: “[t]ake with you documentary proof of your full legal name, date of birth, Social Security number, (if one has ever been assigned), proof of legal presence (U.S. Birth Certificate, valid U.S. Passport/Passport Card, Naturalization Papers, USCIS documents), and proof of residency.”

  174. suerdestroyer says:

    @al-Ameda:

    You would have a stronger argument is you could point to specific policies that were adopted by the Obama Administration that actually decreased unemployment. Compared to previous recoveries, this recovery has be much slower and has had poor job creation. The most significant thing that occurred during the Obama Administration to lower unemployment was the massive number of people who have left the workforce. Also, the poor economic prospects have been great at lowering the demand for illegal aliens.
    However, the structural problems such as the paying interest on national debt, the lack of private sector job creation, moving jobs from full time employment to party time employment are still with us.

    What is amazing is how progressives now desire to double down of the causes of previous problems such as arguing for comprehensive immigration reform and arguing that Obamacare and increasing the minimum wage are something for nothing deals.

  175. al-Ameda says:

    @suerdestroyer:

    this recovery has be much slower and has had poor job creation.

    This recovery was slower for the very obvious reason (except to conservatives) that this was the deepest and most catastrophic economic decline since the Great Depression.