The GOP’s Opening Move On Immigration

President Obama to Announce Executive Action on Undocumented Immigration Issue

After yesterday’s vote in the House, Francis Wilkinson asserts that “Republicans are now openly supporting mass deportation for the nation’s estimated 11 million undocumented immigrants”:

Republicans voted for what might be called “comprehensive anti-immigration reform.” As promised, they backed an amendment to a Department of Homeland Security appropriations bill to roll back President Barack Obama’s November 2014 executive action easing deportations for up to five million undocumented immigrants living in the U.S. Then they kept pushing. They proposed to undo Obama’s 2012 executive action easing enforcement against more than half a million “Dreamers” — undocumented immigrants who were brought to the U.S. as children. And to unravel the administration’s edifice of enforcement discretion, which enables government agents to prioritize enforcement against different classes of undocumented immigrants — thugs now, grandmothers later — and dates back to Obama’s first term.

Dara Lind’s take is more nuanced:

What’s interesting about these amendments is that they would return to a world where unauthorized immigrants lived in constant fear of deportation — but they don’t do much to ratchet up deportation itself.

Republicans were reportedly considering some measures that would require state and local law enforcement to turn over all unauthorized immigrants in local jails to the federal government, for example, or even to allow local police to force the federal government to take any unauthorized immigrant they’d picked up. But that wasn’t reflected in the bill they brought to the floor.

And while the bill maintains the current mandate for ICE to keep 34,000 beds in immigration detention facilities (while providing more money for detaining families and children coming over the US/Mexico border), it doesn’t force ICE to expand detention capacity for people living in the US — nor, importantly, does it actually require those beds to be filled.

So the bill isn’t exactly mass deportation.

Not all Republicans voted for the bill:

Notably, eight of the ten Republicans who voted against the funding bill did so because they rejected the attached anti-immigration provisions. Though all five amendments passed, the one amendment that received the most opposition was also the one that exclusively rolls back President Obama’s existing 2012 executive action for the undocumented community. More than two dozen Republicans opposed Rep. Marsha Blackburn’s (R-TN) amendment, which strips away the Deferred Action for Childhood Arrivals (DACA) program that has already granted temporary legal presence and work authorization to more than 600,000 undocumented immigrants.

What [Michigan’s Republican Gov. Rick] Snyder—and [Ohio’s Republican Gov. John] Kasich, to some extent—are articulating is a viewpoint on immigration from the Midwest that is different from the national debate, which tends to center on border fences and deportation. In these post-industrial states, which have seen huge population loss and economic distress in cities such as Detroit and Cleveland, Snyder and other Republican political leaders are seeing immigration as a tool to help the region “grow and thrive,” as Snyder said in his statement. Or as Karen Phillippi, deputy director of Michigan’s Office of New Americans, puts it: “The focus of our immigration policy is more on economic impact than on social justice.”

The main thrust of the Midwestern pro-immigration argument is based on two points: first, that immigrants tend to be more entrepreneurial than native-borns and therefore are job creators; and second, Midwestern colleges and universities have large numbers of foreign students, and the region wants to keep them after they graduate by opening up the number of visas available.

Sargent wants to know where the presidential contenders stand:

Does today’s House GOP stance have the support of Jeb Bush (who has explicitly called for recognizing the moral complexity of illegal immigrants’ plight); Mitt Romney (who presumably learned the pitfalls of a hard line on immigration); and Marco Rubio (who championed the Senate bill)? Spokespeople for all three have not answered emails asking that question.

(Photo: A man walks next to the U.S. – Mexico border wall on November 19, 2014 in Calexico, California. By Sandy Huffaker/Getty Images)

Executive Amnesty: The Court Battle Begins

by Dish Staff

ICE Detains And Deports Undocumented Immigrants From Arizona

Ruling in what otherwise would have been a fairly straightforward deportation hearing, District Judge Arthur J. Schwab issued an opinion (pdf) yesterday declaring President Obama’s executive action on immigration unconstitutional. Lyle Denniston explains Schwab’s ruling, which could send the matter to the Supreme Court sooner than expected:

“The President may only ‘take care that the laws be faithfully executed’; he may not take any Executive action that creates laws.” The new policy, the judge went on, is not an exercise of presidential discretion on when to prosecute individuals for a violation of the nation’s laws, but was in fact a legislative action beyond the president’s constitutional authority.

Instead of being a form of case-by-case judgment about which individuals are to be deported, Judge Schwab found, the policy “provides a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications.” Rejecting the government’s claim that the policy only delays deportation and does not create any new legal rights for those who benefit from it, the judge declared that the policy provides those who qualify with “substantive rights.” He ultimately concluded: “President Obama’s unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and, therefore, is unconstitutional.”

As Sahil Kapur points out, Schwab is no stranger to controversy. Ian Millhiser picks apart the judge’s argument:

One case that Schwab does not cite is Arizona v. United States, where the Supreme Court said that the executive branch has “broad discretion” in matters of deportation and removal. As Arizona explains, a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Executive branch officials, moreover, “must decide whether it makes sense to pursue removal at all.”

Notably, Arizona also indicates that this broad discretion flows from federal immigration law — i.e. laws that were enacted by Congress. This matters because Schwab’s opinion concludes that Obama’s “unilateral” policy “violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause.” In essence, Schwab concludes that the president lacks the authority to act in the absence of authorization by Congress. Schwab does not even discuss the possibility that Obama’s actions may actually be authorized by Congress. Thus, even if Schwab’s reading of the Constitution is correct — itself a questionable proposition — the judge does not even discuss another major source of law that can justify the president’s actions.

Ilya Somin is not persuaded by Schwab:

Schwab complains that generalized “threshold criteria” will “almost wholly determine eligibility” for deferred deportation under the president’s order. But any exercise of prosecutorial discretion – no matter how “case by case” it may be, must include consideration of criteria that that end up wholly determining the outcome. That’s the whole point of using criteria in the first place. Unfortunately, Judge Schwab fails to even consider the possibility that the key distinction he relies on might be unsound.

If the Supreme Court were to adopt Judge Schwab’s reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president’s order was. Neither possibility is particularly attractive, and neither is required by the Constitution.

Neither is Jonathan Adler:

It is true, as Judge Schwab notes, that the President’s announced policy identifies broad criteria for deferring removal of individuals unlawfully in the country.  This would appear to make the action somewhat legislative, but I don’t think it’s enough to make the action unlawful.  The new policy does not preclude the executive branch from revoking deferred action in individual cases and does not create any enforceable rights against future executive action.  It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution.

Overall, Orin Kerr finds the opinion bizarre:

I was astonished by the legal contortions that Judge Schwab undergoes to get to the point that he can rule on Obama’s policy — and then the way he backs off the implications of his own ruling. Unless I’m just missing something unique to immigration law, it’s an exceedingly strange opinion.

As it happens, the ruling dropped on the same day as this piece by Somin, arguing that Obama’s actions are entirely constitutional:

Because of the enormous scope of federal criminal law, presidents routinely exercise extraordinarily broad discretion in deciding which violations to prosecute. Far more violators are ignored than punished—or even investigated. … Article II of the Constitution states that the president must “take Care that the Laws be faithfully executed.” But that requirement does not mean that the president has an absolute duty to prosecute all violations of federal law, or that he cannot choose which ones to pursue based on policy considerations. If it did, virtually every president in the last century or more would be in violation.

Allahpundit, for one, doesn’t buy it:

The question is this: Whom would you rather see punish O for that, the courts or the voters? In theory, there’s already a check on the president in all this — voters can simply express their disgust by refusing to vote for him or his party’s successor next time around. But that means, without a judicial or legislative counter, we’ll have to endure this power grab for two more years with no remedy. Is that tolerable?

But it’s hard to see this ruling standing when even Bushies like John Yoo oppose it:

To be clear, Yoo’s objection to Schwab’s decision is entirely procedural. Yoo, who once argued that the executive can use many forms of torture despite the fact that federal law explicitly forbids such activities, believes that President Obama’s decision to allow immigrants to remain united with their families is executive overreach. Yet Yoo also criticizes Schwab for opining on the immigration policy’s constitutionality when the issue was not properly before his court. As Yoo notes, “[t]his is not a case where the executive order applies, because the Obama administration is not allowing an illegal alien to remain in the country.” Thus, the case presents “no real dispute over the law, because regardless of whether the executive order is constitutional or not, it would make no difference in [this defendant’s] case.”

(Photo:: A Honduran immigration detainee, his feet shackled and shoes laceless as a security precaution, boards a deportation flight to San Pedro Sula, Honduras on February 28, 2013 in Mesa, Arizona. By John Moore/Getty Images)

Is Obama Radicalizing Republicans?

Screen Shot 2014-12-03 at 1.20.28 PM

Looking over some new polling from Quinnipiac University and CNN, Aaron Blake concludes that Obama’s executive action on immigration has made the chances of a comprehensive reform bill getting through Congress even worse. Why? Because it has “exacerbated the real problem with getting comprehensive reform done: a very motivated opposition”:

The Q poll shows support for allowing illegal immigrants to apply for citizenship falling to its lowest point since the survey started asking the question two years ago. Fewer than half — 48 percent — now support a path to citizenship, down from 57 percent one year ago. The poll also shows that 35 percent say these immigrants should be required to leave (the word “deportation” is not mentioned). That’s a new high, and it’s up nine points from the last poll. And here’s the real kicker: The shift is almost completely among Republicans. Although they supported citizenship over deportation 43 to 38 percent in November 2013, today they support deportation/involuntary departure over citizenship, 54 to 27 percent.

That’s two to one — a stunning shift.

And if it’s even close to accurate, there are very few Republicans in Congress who will be eager to vote for comprehensive reform in the 114th Congress. … The CNN/Opinion Research poll tells a similar tale. Although 42 percent favored the policies that Obama announced and 46 percent opposed them, it was clear where the motivation remains: with the opposition.

Waldman remarks that the pro-deportation shift among Republicans in the Quinnipiac poll “provides an object lesson in a dynamic that has repeated itself many times during the Obama presidency”:

We’ve talked a lot about how the GOP in Congress has moved steadily to the right in recent years, but we haven’t paid as much attention to the movement of Republican voters. But the two feed off each other in a cycle.

Immigration is a perfect example. Before this latest immigration controversy, Republican voters were at least favorably inclined toward a path to citizenship. But then Barack Obama moves to grant temporary legal status to some undocumented people (and by the way, nothing he’s doing creates a path to citizenship for anyone, but that’s another story). It becomes a huge, headline-dominating story, in which every single prominent Republican denounces the move as one of the most vile offenses to which the Constitution has ever been subjected. Conservative media light up with condemnations. And because voters take cues from the elites on their own side, Republicans are naturally going to think the order was wrong while Democrats are going to think it was right.

Drum wonders how Obama compares to past presidents:

Bush polarized public opinion in the same way Obama does. Perhaps all presidents do. Still, it sure seems as if Obama polarizes more than any previous president. I can think of several reasons this might be true:

• Something to do with Obama himself. This could be anything from underlying racism to the nature of Obama’s rhetoric.

• Our media environment has become increasingly loud and partisan over time, and this naturally polarizes opinions more than in the past.

• The Republican Party has simply become more radicalized over the past decade or so.

• In the past, liberal Republicans and conservative Democrats acted as natural brakes on viewing everything through a purely partisan lens. But party and ideology have been converging for decades, and this naturally makes every issue more partisan.

What’s A “Legal Immigrant”, Anyway?

Over the Thanksgiving holiday, Julia Ioffe posted a reflection on how her Russian-Jewish family came to the US that zooms out into a history lesson on our immigration laws – a history replete with political calculations, arbitrary rules, exceptions, and yes, presidential fiats. Far from offering a clear-cut distinction between legal and illegal immigrants, she concludes, “American immigration law is perhaps one of the most mercurial sets of laws we have”:

It is not set in stone, nor has it ever been. Historically, it has depended on racism, trade priorities, and geopolitical considerations, just as it does today. And as Senator Ted Cruz, son of a Cuban immigrant, rails against Hondurans and Mexicans for coming to America illegally, keep in mind just how lucky his family is to come from a country that got the kind of special status that allowed, and still allows, Cubans to come to U.S. in ways that would be considered illegal for other populations and to get a green card in a year. Consider that this is not because of a law passed in the U.S. Congress, but because some guy we didn’t like seized power in 1959 and a few American presidents decided to help the Cuban bourgeoisieand to stick it to Nikita Khrushchev. It’s why I and my 60 relatives are here, too. And it is quite likely that one of your ancestors got in through some giant, executive loophole ages and ages ago. Or got here when there were no loopholes because there were simply no laws pertaining to immigration.

The Dish previously covered the “cutting the line” argument against amnesty for illegal immigrants here.

Quote For The Day

US-POLITICS-CLINTON

“The GOP has withheld cooperation from every major element of President Obama’s agenda, beginning with the stimulus, through health-care reform, financial regulation, the environment, long-term debt reduction, and so on. That stance has worked extremely well as a political strategy. Most people pay little attention to politics and tend to hold the president responsible for outcomes. If Republicans turn every issue into an intractable partisan scrum, people get frustrated with the status quo and take out their frustration on the president’s party. It’s a formula, but it works.

The formula only fails to work if the president happens to have an easy and legal way to act on the issue in question without Congress. Obama can’t do that on infrastructure, or the grand bargain, and he couldn’t do it on health care. But he could do it on immigration. So Republicans were stuck carrying out a strategy whose endgame would normally be “bill fails, public blames Obama” that instead wound up “Obama acts unilaterally, claims credit, forces Republicans to take poisonous stance in opposition.” They had grown so accustomed to holding all the legislative leverage, they couldn’t adapt to a circumstance where they had none,” – Jon Chait, cutting through the chatter as usual.

I still don’t like the executive action here – in an area appropriate for legislation. But as politics, it seems to me more successful than I expected. What Obama has done – rightly or wrongly – is break out of the zone he’s been placed in since 2010. The absolute obstructionism of the House GOP against anything the president might want to do could have rendered him utterly side-lined in his last two, critical years. In fact, that was their smug expectation. Instead the pressure has been ju-jitsued right back on them. The failure of the GOP to respond except in a succession of splutters and outrage has revealed one core reason for gridlock: the deep divide within the GOP that is now, on a critical issue like immigration, threatening to throw their future into doubt. I don’t know where this dynamic will take us. But it sure is more interesting than watching another two years of Congressional deadlock.

Meep meep?

(Photo: Mandel Ngan/AFP/Getty)

Obama’s “Tyranny” Scores Well In Key Demos

New polls indicate that the executive action on immigration reform Obama announced last week enjoys widespread backing from Latinos and millennials:

Almost 90% of Latino voters say they “support” or “strongly support” Obama’s executive action, according to a national poll by Latino Decisions and commissioned by two pro-immigration reform groups, Presente.org and Mi Familia Vota. Nearly three-fourths (72%) of voters under the age of 35 supported the president’s action, according to a national poll by Hart Research Associates [PDF]. …

Latino support for the executive action appears to be largely bipartisan, according to Latino Decisions. While 95% of Democratic Latino voters were in favor of the executive action, 76% of Republican Latinos were as well. The issue of immigration reform remains deeply personal for many Latino voters, 64% of whom have friends, family members, coworkers, or acquaintances who are undocumented.

Another survey, however, finds that the public as a whole is evenly split:

The Quinnipiac University survey released Tuesday found that 45% of voters support the President’s immigration moves, while 48% oppose them.

The poll also shows support for immigrants at its lowest level ever measured by Qunnipiac: 48% of voters say undocumented immigrants should be allowed to stay with a path to citizenship, down from 57% in November of 2013. And 35% say undocumented immigrants should be required to leave the U.S., up from 26% a year ago. “Americans look at immigration reform with ambivalence,” said assistant Quinnipiac polling Tim Malloy said.

Josh Marshall infers from the Latino Decisions poll that legal immigrants—whom opponents of amnesty often argue would be hurt the most by it—support Obama’s action:

The poll, by Latino Decisions, does not break out native born Hispanic voters from immigrant Hispanic voters. But it does break out the numbers for respondents who talked with the pollsters in English or Spanish. That seems like a relatively good proxy for native vs. immigrant. The “Spanish” number is 94% compared to 85% for “English”. When you pick the numbers apart, they are so overwhelming that there’s really no way to argue that legal immigrants are less than overwhelmingly, perhaps close to unanimous in their support of this policy.

Now, let me be crystal clear: I do not find this remotely surprising. Immigration status cuts through numerous immigrant communities – Hispanic immigrant communities as much as any other. So it is not surprising that Hispanic voters are supportive. Recent immigrants, even if they were never undocumented, seem to empathize with the status of immigrants generally. It seems like the people who believe legal immigrants are victims of legalization for undocumented immigrants are native born white people who vote for the Republican party.

Waldman, though, wonders if Latino Decisions didn’t skew the poll somewhat with the way they framed the question:

There’s nothing biased in the Latino Decisions poll including the description it does of the action. The problem is in the question’s first sentence: “President Obama has said that Congress has had many chances to pass and immigration bill and they failed.” That’s perfectly true, but standard practice says that if you’re going to include an argument that one side uses on an issue, you should include an argument that the other side makes as well; in this case, something like “Republicans say that Obama is exceeding his authority by taking this action without congressional approval.” By presenting an argument for one side but not the other, they’ve encouraged respondents to lean in one direction. That’s very common among polls done for private clients, but it does skew the results.

That isn’t to say that approval of Obama’s actions isn’t extremely high among Latinos, or that if you asked the question a different way you might not get similar results.

The Party Of Executive Power?

Julia Azari suspects “strong executive action enjoys more legitimacy when it’s taken by a Republican president than a Democratic one”:

Obama’s supporters on the left haven’t really developed a good political story about why governing through enforcement is a good thing. Most justifications involve vilifying Congress – satisfying for partisans but still casting the administration in a defensive role.

For conservatives during the Bush administration, the narrative was pretty easy to develop. Unilateral presidential action defends elephant.jpgthe nation. Furthermore, the president is a legitimate defender of his own Constitutional prerogatives (so the justification goes; not necessarily my view). This works better for Republican presidents because conservatives have gained issue ownership not only over national security but also, to a great extent, over the question of Constitutional protection.

Civil libertarians are an important part of American political and legal culture. But they haven’t recently formed a political movement around their ideas about the Constitution the way that the Tea Party has. The dominant political framework for understanding the Constitution casts it as a procedural document, meant to protect against excessive government action – even when that action might bring about positive results. This framework is a much more powerful tool for conservatives than for liberals. Although liberals also sometimes draw on Constitutional principles – including limits on executive action – it’s less central to their ideology. This means the politics of enforcement are much more difficult for a Democratic president to justify – enforcement decisions must either be done on substantive, rather than constitutional grounds, or they must tread on territory usually dominated by the other party.

Maybe the Democrats need to take another look at Burke. Or be reminded of the roots of progressivism in The New Republic‘s founder, Herbert Croly. Frank Foer explains:

By the time he crept toward middle age, after so many years of drift, Herbert attempted to fulfill his father’s dreams for him, in one last mad dash for greatness. He poured all his accumulated thoughts and theories into a bulging manifesto called The Promise of American Life. The book, which appeared in 1909, argued that American life had grown hobbled by the lingering legacy of Thomas Jefferson—the nation celebrated an antiquated form of individualism and libertarianism that no longer matched the realities of the industrial age. Modern life had sapped the energy from America; it tolerated rampant mediocrity. To restore itself, the country would have to turn to the theory of government espoused by Jefferson’s old nemesis, Alexander Hamilton. That is, it would need a strong central state. Croly’s book embodied many of the characteristics of the magazine he created: It was in turns wonky and literary; it rigorously analyzed the economic perils of unregulated trusts and calculated the toll of intellectual conformism.

I come at this from a very different Tory tradition. That line of thought wants government to be both limited and yet strong within its rightful parameters. So I don’t have much of a problem with the EPA making rulings based on its statutory authority as an executive office. Or with the president’s war-conducting (if not war-making) privileges. Or with setting priorities within law enforcement. Where does the executive action on undocumented immigrants stand? Somewhere in the middle: within the bounds of legal executive discretion, but in scale and intent, beyond anything that has occurred before – including, it now appears, the actions of president George H W Bush. On balance, I think it’s an over-reach – but an over-reach that needs to be understood in the context of unprecedented Congressional obstructionism. Or to put it tartly in the words of Kevin Drum:

You know, the more I mull over the Republican complaint about how immigration reform is being implemented, the more I sympathize with them. Public policy, especially on big, hot button issues like immigration, shouldn’t be made by one person. One person doesn’t represent the will of the people, no matter what position he holds. Congress does, and the will of Congress should be paramount in policymaking … Both the law and past precedent are clear: John Boehner is well within his legal rights to refuse to allow the House to vote on the immigration bill passed by the Senate in 2013.