Tag: Immigration

by Dish Staff

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)

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.

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.

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 the 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.

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 Republicans—it 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.

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.

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.