“A Bomb Planted At The Heart Of The Regulatory State”

That’s how Eric Posner describes Obama’s executive action:

The point is not just that Republican presidents can do what Obama has done. It is that enforcement discretion creates an advantage for Republicansit favors conservative governance and hurts liberal governance. The reason for this asymmetric effect is that the great bulk of federal law is liberal economic regulation, not conservative morals regulation. A conservative president can refuse to enforce laws, but a liberal president can’t enforce laws that don’t exist. While a President Rand could gut the regulatory state, the opportunities for a President Hillary Clinton to advance liberalism through non-enforcement are much less fecund.

Andrew Prokop isn’t so sure:

Several commentators have been floating various possibilities about how the GOP could take advantage of those powers in ways Democrats would surely hate. “What if a Republican president announced that he would stop enforcing the payment of estate taxes? Or suspend enforcement of regulations on industrial pollution?” wrote Jonathan Chait. But as you dig deeper into these scenarios, it comes clear that some of them just wouldn’t work — and some of them Republicans supported long before Obama’s latest executive actions.

Trende pushes back on Prokop:

This, I think is misguided. Once a president uses executive authority to implement a major, controversial policy that has been under debate in Congress for almost a decade, especially after his party suffered a substantial midterm rebuke, there is no going back.  It is going to be used repeatedly, in ways that both parties find appalling.

The Norms Obama Broke

Sean Trende is concerned about the unintended consequences of Obama’s executive action:

Contrary to some of the louder reactions, our Republic can withstand this breach. The real problem is that our history suggests that once these norms are violated, Humpty Dumpty can’t be put back together again. We see this with the sorry state of our judicial nomination process. What probably started with an arguably justified filibuster by Republicans and conservative Democrats of Abe Fortas’ nomination as chief justice of the Supreme Court (he really did have some ethical issues), escalated to the defeat of Robert Bork on ideological grounds and a blockade by Democrats of many of George H.W. Bush’s nominees in the final years of his term, to a more extensive blockade of many of Bill Clinton’s nominees for most of his term by Republicans, to the filibuster of many of George W. Bush’s Court of Appeals nominees by Democrats, to Republican threats of dismantling the judicial filibuster in response, to Republican filibusters of Obama’s appellate and District Court nominations, to the actual dismantling of the judicial filibuster by Democrats.

Both parties played a role in these latter developments, and the Bush presidency clearly saw its fair share of broken norms (using the threat of budget reconciliation to pass tax cuts; the midterm firings of U.S. attorneys). But this proves nothing. The point is that once you start down a road, you don’t go back. No one who voted to filibuster Fortas would have agreed that the endgame would be routine filibustering of District Court nominations and the beginning of the end of the filibuster, but that’s exactly what happened. No one really thought that the creation of reconciliation would enable the enactment of $1.3 trillion in tax cuts. And so forth.

Scott Lemieux dismisses such worries:

Both the second Bush administration and the actions of Republicans in Congress make it abundantly clear that the next Republican in the Oval Office is going to push toward – and probably beyond – the limits of his legal authority, no matter what Obama does. (For instance, George W Bush’s warrantless wiretapping program, established by executive order, contradicted a statute outright, which Obama’s order does not.) If hypothetical president Rand Paul wants to refuse to enforce the Civil Rights Act, he’s not going to be dissuaded because Obama refused to act on immigration.

Drum thinks the whole thing is politically brilliant:

Is there a price to be paid for this? If you think that maybe, just maybe, Republicans were willing to work with Obama to pass a few constructive items, then there’s a price. Those items might well be dead in the water. If you don’t believe that, the price is zero. I’m more or less in that camp. And you know what? Even the stuff that might have been passable—trade authority, the Keystone XL pipeline, a few tweaks to Obamacare—I’m either opposed to or only slightly in favor of in the first place. If they don’t happen, very few Democrats are going to shed any real tears.

That leaves only presidential appointments, and there might be a downside there if you think that initially Republicans were prepared to be halfway reasonable about confirming Obama’s judges and agency heads. I kinda doubt that, but I guess you never know. This might be a genuine downside to unleashing the tea party beast.

Yuval Levin feels Obama is overstepping:

If the Constitution is merely a technical legal document, it might (perhaps) be possible to defend this action as somehow within the bounds of the president’s enforcement discretion. But because the constitution creates a political order—a structure for the political life of an actual society—it is very difficult to sustain such a defense in the real world. That combination of factors means that a judge might well sustain the president’s action as minimally defensible if it was challenged in court but the Congress cannot consider it so. And both would be playing their proper constitutional roles.

Suderman suggests a remedy:

If members of Congress think actions beyond a certain size and scope should be illegal, then they ought to write a law explicitly saying so, tightly and clearly defining how, when, and under what circumstances the executive is allowed to act.

But Ilya Somin doubts that will solve the problem:

Even if Congress were more assertive, it could not prevent the president from exercising extremely broad discretion in a world where almost everyone is a federal criminal, and he has to pick and choose a small fraction of those criminals to go after. If we truly want to limit executive discretion and selective enforcement of laws, the best way to do so is to cut back on the scope of federal law to the point where the president has the resources to go after all or most offenders. Better still, federal law could be limited to those activities for which there is a broad consensus that they really are serious offenses that cannot be left to the states, and must be targeted by the federal government. If a president still chose not to enforce them, or did so only selectively, he (and his party, if they choose support his actions) would suffer a tremendous political backlash.

Skilled But Excluded

Leonid Bershidsky regrets that that Obama’s executive order did little for skilled immigrants:

On the surface, there is little the president, without Congress’s help, can do for skilled migrants. The Immigration and Nationality Act allows only 65,000 people a year to receive H1B temporary skilled worker visas. (Exempt from this quota are 20,000 U.S. graduates of master’s degree programs, as well as an unlimited number of potential government and nonprofit employees.) Just 140,000 skilled workers and their family members are eligible for employment-based green cards each year. …

Perhaps the story of the lottery-losing programmer isn’t as poignant as that of Astrid Silva, who, according to Obama, came to America with just “a cross, her doll and the frilly dress she had on.” The programmer would, however, be more immediately useful to the U.S. economy than Silva, “a college student working on her third degree.” Not letting him in is at least as wrong as kicking out Silva would be.

Jim Manzi argues for more high-skilled immigrants generally:

All of the major Anglophone democracies have done a far better job of this than America and have reaped the benefits.

Australia, Canada, and New Zealand all have a higher foreign-born population than the U.S., and all three plus Britain have more new immigrants each year per capita than the U.S. They have all used some kind of points system to select for immigrants with relevant skills, such as English proficiency and educational attainment, and extra points for degrees or expertise in such fields as science, technology, and medicine. They are generally moving to a two-stage system in which foreign applicants who achieve at least some specificed target score under such a points system are put into a pool which prospective employers can browse, and are granted visas when specific employers offer them jobs. America should implement such a system.

Along the same lines, Philip Sopher thinks it should be easier for physicians to immigrate to the US:

The United States… has strict policies regarding medical licensing—a doctor is only allowed to practice in the U.S. once he has obtained a license in the state in which he intends to work. The person must acquire a visa, pass the first two steps of the United States Medical-Licensing Exam (USMLE), then become certified by the Education Commission for Foreign Medical Graduates (ECFMG), get into an accredited U.S. or Canadian residency program, and finally, go back and pass step three of the USMLE. Each of these steps could take multiple years, repelling doctors who are already able to practice in the country in which they were trained.

But is it really a good idea to deter them? By 2020, America’s doctor shortage is projected to reach 91,500 too few doctors, with nearly half of the burden falling on primary care. This means doctors will be overworked and citizens may have to wait longer and pay higher fees for an appointment. Without all of these barriers, many foreign doctors would find the prospect of migrating to the United States appealing.

Recent Dish on STEM-oriented immigration here.

Where Are The Hawks For Immigration Reform?

Freddie asks:

[I]f you are a liberal internationalist, a humanitarian interventionist, you better be out there beating the drum for this reform every day. You better be going on cable news, spending all of your political capital trying to make this happen. You better take to the op/ed pages and Twitter and every other way you have to communicate. And when you do, you better use all of that same moralizing language you do when you’re making your constant calls for war. You better be just as aggressive in suggesting that people who oppose your preferred policy just don’t care about the lives of people who could be saved, as you do when you are advocating for cruise missile strikes. You better follow through.

Because one of the most straightforward, direct, achievable, and cheapest forms of humanitarian intervention is to welcome people with open arms into our country. The fact that this kind of humanitarianism is so rarely considered, when people are looking for ways to save the world with violence, tells you a lot about them and what they really care about.

Can Republicans Avoid The Trap Obama Set?

GOP Immigration

Noam Scheiber highly doubts it:

[T]he conservative message machine has gone on at length about the “constitutional crisis” the president is instigating. The right has compared Obama to a monarch (see here and here), a Latin American caudillo, even a conspirator against the Roman Republic. (Ever melodrama much?) The rhetoric gets a little thick. But if you boil it down, the critique is mostly about Obama’s usurpation of power and contempt for democratic norms, not the substance of his policy change. Some Republicans no doubt believe it.

And yet, try as they might to stick to the script, there’s something about dark-skinned foreigners that sends the conservative id into overdrive.

Most famously, there’s Iowa Congressman Steve King’s observation last year that for every child brought into the country illegally “who’s a valedictorian, there’s another 100 out there who weigh 130 pounds and they’ve got calves the size of cantaloupes because they’re hauling 75 pounds of marijuana across the desert.” While King tends to be especially vivid in his lunacy, he’s no outlier.

How Chait expects this to play out:

Substantively, Obama’s executive order gives him less than he hoped to gain with a bipartisan law. But politically, he has ceded no advantage. Indeed, he has gained one. Not only does immigration remain a live issue, it is livelier than ever. The GOP primary will remorselessly drive its candidates rightward and force them to promise to overturn Obama’s reform, and thus to immediately threaten with deportation some 5 million people — none of whom can vote, but nearly all of whom have friends, family, co-workers, and neighbors who can. …

The emotional momentum in the Republican Party now falls to its most furious, deranged voices. Michele Bachmann has denounced what she calls “millions of unskilled, illiterate, foreign nationals coming into the United States who can’t speak the English language.” Rep. Mo Brooks of Alabama has even presented the most sympathetic slice of the immigrant community — the ones serving in the military — as a source of insidious competition and even treason. (“I don’t want American citizens having to compete with illegal immigrants for jobs in our military … These individuals have to be absolutely 100 percent loyal and trustworthy.” Steve King, a regular font of nativist outbursts, is setting himself up as a power broker in Iowa, which will command center stage in the GOP primary for months and months on end.

(Graphic from Josh Marshall.)

Obama’s Legal Footing Is Firm

That’s Walter Dellinger’s determination:

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

The piece is by far the best I’ve read on the subject, and calms my fears a lot. This is the best response to Ross’s point that if the president can do this for 4 million, why not every undocumented immigrant:

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

But, again, the ability of the Obama administration to make its best case seems to be in doubt. They put out a long legal paper – but back it up with no aggressive messaging in the broader public square. That way, they win the argument but somehow lose the debate. Which is the story on the ACA as well. Here’s Dellinger’s strongest point, it seems to me, and one critical to understanding the debate about executive discretion:

There are 11.3 million people in the United States who, for one reason or another, are deportable. The largest number that can be deported in any year under the resources provided by Congress is somewhere around 400,000. Congress has recognized this and in 6 U.S.C. 202 (5) it has directed the secretary of homeland security to establish “national immigration enforcement policies and priorities.” In the action announced tonight, the secretary has done just that, and the president has approved.

Drum, for his part, is somewhat surprised to find that “both liberal and conservative legal scholars—as opposed to TV talking heads and other professional rabble-rousers—agree that Obama has the authority to reshape immigration enforcement in nearly any way he wants to”:

It’s an open question whether Obama’s actions are politically wise. It might force Republicans into an uncomfortable corner as they compete loudly to denounce Obama’s actions, further damaging their chances of appealing to Hispanics in future elections. Alternatively, it might poison any possibility of working constructively with congressional Republicans over the next couple of years, which might further degrade Democratic approval ratings. There’s also, I think, a legitimate question about whether liberals should be cheering an expansion of presidential power, whether it’s legal or not.

That said, Obama’s actions really do appear to be not just legal, but fairly uncontroversially so among people who know both the law and past precedent.

Marty Lederman dispels “some of the more commonly heard myths about the DHS enforcement priorities and ‘deferred action’ policies that the President just announced.” One myth he busts:

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

Ilya Somin agrees that Obama is in the clear:

I am no fan of the Obama administration’s approach to constitutional interpretation. In too many instances, the president really has acted illegally and undermined the rule of law – most notably by starting wars without congressional authorization. But today’s decision isn’t one of them.

What Is The GOP’s Immigration Policy?

Here’s what Obama did last night:

Ezra requests that Republicans formulate a real response:

Republicans need to decide what to do with the 11 million unauthorized immigrants living in the country now. They need to take away Obama’s single strongest argument — that this is a crisis, and that congressional Republicans don’t have an answer and won’t let anyone else come up with one. …

That, really, is Obama’s advantage right now. Even if you think he’s going too far, he at least wants to solve the problem. Republicans don’t seem to want to do anything except stop Obama from solving the problem. That’s not a winning position. More to the point, it’s not a responsible one.

Bloomberg View’s editors echo:

It’s time for Republicans to put up or shut up. By now it’s clear what they’re against — the dreaded “a” word (amnesty). But what are they for? They can’t avoid that question any longer. Now that they are the majority party in both houses, they don’t have the luxury of sitting back and criticizing everything that Democrats propose. Now they’re in charge. They need to start acting like it.

Thomas Mann is in the same ballpark:

Let’s get serious. Republicans used their majority foothold in the House to guarantee that Congress would be the graveyard of serious policymaking, a far cry from the deliberative first branch of government designed by the framers. They have reduced the legislative process to nothing more than a tool in a partisan war to control the levers of public power. The cost of such unrelenting opposition and gridlock is that policymaking initiative and power inevitably will flow elsewhere  — to the executive and the courts.