I realize it’s kind of late in the day for this, but I figure some of y’all might still want to discuss these things, even if you don’t get to them until the morning.
I only have a couple or three proposed topics:
- Obama Said to Plan Moves to Shield 5 Million Immigrants — Looks like he’s going to get in the GOP’s faces over this. Will this endanger his ability to find common ground on other things? Maybe. Should he do it anyway? Maybe…
- US military considers sending combat troops to battle Isis forces in Iraq — That headline, from The Guardian, perhaps goes a bit far. But Gen. Dempsey was floating the idea today.
- Secret Service Blunders Eased Way for White House Intruder — This just in. Report details failures by the protective detail.
Sorry I didn’t see anything good local. Mostly crime news, it seems, and that tends not to catch my eye. I mean, we’re all against crime, right? So what would we discuss?
But maybe y’all have a good local topic in mind…
Related Posts
How about SCOTUS’s lifting the stay on same sex marriages in Kansas? Only Scalia and Thomas dissenting.
Is it still a worthy effort for the AG and governess to appeal Gergel’s ruling?
You would know better than I. But didn’t the recent appeals court ruling upholding a ban mean that Gergel’s ruling isn’t final until the Supremes weigh in? Or does it have force in the 4th Circuit, until SCOTUS takes it up?
I don’t know enough to say. I’m not a lawyer, and haven’t read up on it enough…
If 7 justices lifted the stay, it is not reasonable that any appeals to enforce a ban will stand.
Really? Is it unusual for a higher court to lift a stay pending appeal, and then later rule the other way?
I ask because I don’t know. And because intellectually, it seems to me that we’re talking about two different things — whether a stay should stand pending further action, and whether a case has merit in the end.
Well, the stay is there to preserve the status quo, to avert harm to the party who may ultimately prevail. Seven Supremes sure seem to say they do not think the ban proponents will ultimately prevail.
RE: #1, Should Obama use an executive order to not enforce existing federal law? I’m gonna go with no.
I would hope that everyone would agree that when the country is considering big policy changes, we do so in a manner that follows the rule of law.
I understand that the President has a policy preference on this issue, and Congress is not acting on his policy preference. However, he cannot simply say “Time’s up!” and enact his policy preference by saying he’s no longer going to enforce federal law.
I would hope that most people would rather follow rule of law than simply try to enact their policy preference by fiat.
Bryan, it’s not about the law, it’s about “brown people”. I know that’s true because my Senator said it.
Simple question: after Obama implements his “ignore the law” amnesty program, when do we expect the next decree to absolve anyone who after that one? and then after that? and after that?
It was amusing to see that some groups are suing the government to stop all current deportations until Obama waves his magic wand.
Surprising how ax-grinders in a polarized political environment ignore important stuff like facts and context. The immigration issues we face now, including selective enforcement, didn’t start with the current President. The buildup of illegals, undocumented, or whatever you want to call them started before the Reagan-era “solution,” and it continued to build through Bush, Carter, Clinton, and Bush 2. The numbers since 2008 have remained substantially the same, with some reversals during the job crisis following 2008. Presidents have ignored or very selectively enforced the law while declaring that we “must do something” to fix the mess. Obama, sometimes called “the great deporter” has made some efforts to clarify the selective enforcement by actually stating policy and rationale for the selectiveness. It beats the “wink, wink, nudge, nudge” policies of his predecessors who also recognized the difficulties of rounding up immigrants and the pressure from many businesses for large pool of cheap laborers and other labor needs. Despite a limited bill already passed by the Senate with support from both parties, the blame game goes on without much focus on the realities of the problem – only a push-it-down-the-road attitude. These same Republicans who ignored the 2012 election results and rebuffed the desire of some of their own members to seek a solution were cowed by TEA party sentiment (and threats) into opposing any real reform, just “build the wall” grandstanding.
I predict we will see posturing, outlandish claims, and rancor, but little working on the problem, even though Pres Obama stated clearly that any action he takes is temporary and will be superceded by any reform passed and signed – which his action is intended to prod into being.
I also predict you will find Republicans framing as a compromise a program that welcomes immigrants to stay, work cheaply, pay payroll, sales and income taxes, but not receive benefits and never, never, no never vote. After all, they’re really into fairness and opportunity – unless you’re liable to vote for Democrats.
I got Carter out of order. I wanted him to be included, just didn’t read what i wrote.
The comments on this blog are far more polite than some I’ve seen on some other comment boards (for which I’m very grateful). The claim is made that the president will have exceeded his constitutional authority if he announces a decision not to prosecute some undocumented immigrants. Elsewhere on the web this is being treated as the certain end of the rule of law and civilization as we know it. I don’t see it. As I’ve been involved in advocacy on issues involving potential criminal prosecutions, I’ve become much more aware of how broad prosecutorial discretion is. Any president, as head of the federal executive branch, has and uses a lot of authority arising from this every day. Decisions about where law enforcement resources are allocated affect prosecutions, and then there are more explicit decisions like this one. You may or may not agree with the decision that is made, but I’ve seen no convincing argument that the president would exceed his constitutional authority in making a decision not to pursue and prosecute some group of undocumented persons. If you’d like an example of a fairly extreme use of this authority, after World War II the decision was made not to prosecute, and in fact to aid, some Nazis who were guilty of serious war crimes because they were perceived as useful to the United States and its allies in developing the rocket program or in informing against the Soviet Union. This is very broad authority to make a decision in the perceived national interest. There are always differences of opinion about what is in the national interest, but that is a political decision, not a legal one.
Thank you for raising the concept of “prosecutorial discretion.” That’s what immediately springs to my mind every time I hear someone comment that the president is not fulfilling his constitutional duties (or exceeding the same) by failing deporting every undocumented alien, regardless of current status or personal history. Choosing not to apply certain immigration laws to large groups of people differs from a decision on the part of a D.A. not to prosecute an individual only in terms of scale. The principle is the same.
“You may or may not agree with the decision that is made, but I’ve seen no convincing argument that the president would exceed his constitutional authority in making a decision not to pursue and prosecute some group of undocumented persons.”
Prosecutorial Discretion (PD) exists. However, it exists to give criminal prosecutors the discretion to compromise cases, seek lesser charges, recommend sentences, or in extreme (and rare) circumstances not to file charges. PD does not simply allow a government official to decide that he is not going to bring charges against an entire group of people. That’s not discretion – that’s just failing to enforce the law.
PD doesn’t extend to simply saying “I’m not going to enforce this law.”
As a hypothetical, what if under a Caskey Administration, I said the following: “As President, I have been waiting for this do-nothing Congress to enact tax reform. I’ve been waiting for a long time, and this Congress has failed to act according to what I think is the appropriate policy in eliminating the capital gains tax. Accordingly, since Congress will not act to eliminate the capital gains tax, leaving millions of people burdened in this economy struggling to recover, through executive order, I have directed the IRS not to enforce or prosecute anyone who fails to pay capital gains taxes. Congress can certainly supersede this Caskey Executive Order not to enforce the capital gains tax law, but until then, we will not prosecute anyone or attempt to levy taxes on capital gains.”
Obviously, this isn’t how the Constitutional system of checks and balances was designed to work. If you subscribe to this “prosecutorial discretion” theory, our whole system of law is essentially at the whim of the President to may choose to enforce it or not.
If you subscribe to the “prosecutorial discretion” theory, what is the effect of Article II of the Constitution wherein the “President shall take care that the laws be faithfully executed”?
If you subscribe to the “prosecutorial discretion” theory, what is the limiting factor? Are there any laws that the President may NOT choose to enforce in his discretion?
Don’t bring me examples about a few Nazis being given selective immunity. Find me an example where the President of the United States said “This law on the books is not going to be enforced against anyone.” It doesn’t exist.
And it’s bad precedent to do it now. You may be living under a Caskey regime one day.
Apologies for the length of the following comment.
The question should be: Does the president have the authority to pick and choose of his own volition and political ideology laws that he will not enforce and change by executive order without going before congress and asking for approval to do so?
Equating decisions made concerning Nazi war criminals because of their potential to benefit certain science and intelligence needs of the country and the potential information cache about Soviet Russia vs. issuing immunity for 5 million people who are indeed in this country illegally is not a justification or reasonable rationale. Unless my understanding of the history behind granting Nazi war criminals immunity is incorrect, it was not done with the public’s approval or Truman but was carried out in secret operations by the intelligence community at the time.
Another point, while a prosecutor may weigh the evidence and situation and decide against prosecuting someone for a crime, the fact is that the president is not a prosecutor and does not have legal standing other than the strength of the office and the privilege of granting a pardon if justified or in some cases, not justified.
The president does not have carte blanche to grant immunity when it goes against established law especially if state or civil laws are circumvented by doing so. The following is an excerpt from research on the subject. “”Article II, Section 2, clause 1 grants the President “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This means that the President may pardon someone who is accused or convicted of a federal crime, but the President holds no such power regarding violation of state law or civil, as opposed to criminal, offenses.””
Another point, although an executive agreement can be issued by the president, it cannot circumvent established federal law. The established federal law does not allow illegal immigrants the right to remain in this country and demands they be repatriated back to their own country once apprehended. Therefore, if Obama does proceed with issuing an executive agreement in the form of a blanket immunity to 5 million illegal immigrants, he will be violating presidential powers.
The following is just a few examples of federal immigration laws.
It is Illegal To Bring Illegal Aliens Into US under current Laws
It is unlawful for any person to bring aliens into the United States. Fine: $3,000 for each alien (Sec. 273. [8 U.S.C. 1323])
It is Illegal To Harbor Illegal Immigrants
. It is unlawful to bring in or harbor illegal aliens. Fine: $3,000 for each alien. (Sec. 273. [8 U.S.C. 1323] )
It is Illegal To Employ, Recruit, or Refer Illegal Aliens for Jobs
. It is unlawful for a person or other entity- to employ or recruit or refer for a fee an illegal alien in the United States. Commercial advantage or private financial gain offender can be fined under title 18, US code, imprisoned for not more than 10 years, or both. …Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in sub paragraph (B) shall be fined under title 18, United States Code, or imprisoned for not more than 5 years, or both. (Sec. 274A. [8 U.S.C. 1324a] )
It is Illegal To Forge Documents for Illegal Immigrants or violate Identity Theft Laws
. It is unlawful for any person or entity knowingly- to forge documents. Legal documents must be presented when entering the US.
( Sec. 274C. [8 U.S.C. 1324c] )
…Fine: not less than $250 and not more than $2,000 for each document that is the subject of a violation.
…Previous violation: not less than $2,000 and not more than $5,000 for each document that is the subject of a violation.
US Laws Declare it is Illegal To Aid or Abet Illegal Immigrants
. It is unlawful for anyone to aid or assist aliens to enter the United States. Penalty: fined under title 18, United States Code, or imprisoned not more than 10 years, or both. ( Sec. 277. [8 U.S.C. 1327] )
If the laws on illegal immigration are draconian and need to be repealed, changed, or modified, the laws should be changed in the proper venue, congress, not at the political whims of the DOJ and POTUS. And, any sitting federal judge who sides with not enforcing a standing, legal federal law should be removed from the bench immediately. Any city that declares itself a “safe haven” should be denied any federal funds and the ones responsible for violating federal law prosecuted.
This country has always been at the forefront when it comes to offering and providing aid to any country when a disaster occurs. This country has a long history of providing financial, health, and military aid to allies and sans military, even our sworn enemies. But, at some point, the countries encouraging illegal entry into the US should be held accountable by our government but unfortunately, they are not.
The main perpetrator of supporting illegal entry into the US, Mexico, has immigration laws that makes our laws pale in comparison.
I know several illegals that are working, paying state and federal taxes by payroll deductions, work hard, and basically are good “citizens”. But, in the end, they are here illegally and in accordance with the law, are not citizens of the US. Either change the law or enforce the law, because if neither is done, opportunistic politicians will continue to use it as a wedge issue for political gain.
Others beg to differ with you. I quote from the Immigration Policy Center:
“…prosecutorial discretion is inherent in our system of laws, regardless of the substantive issue. In the immigration context, research conducted by Shoba Sivraprasad Wadhia shows that immigration agencies and officials have a long and rich history of using prosecutorial discretion to resolve cases involving significant equities, policy calls, or practical resource issues. In 2000, then-INS Commissioner Doris Meissner issued guidance clearly articulating the role of prosecutorial discretion in immigration enforcement. That guidance remains in operation and has served as the touchstone for a series of other DHS memos on exercising discretion. The Morton Memo on prosecutorial discretion is the most recent of at least thirteen such memos.”
“Members of Congress, while often disagreeing with the Executive Branch, also recognize and call for prosecutorial discretion to be implemented in interpreting laws. In November of 1999, Congressman Lamar Smith circulated a bipartisan letter signed by 28 members of Congress asking the Attorney General and Commissioner of the Immigration and Naturalization Service (INS) to exercise discretion in immigration cases. The letter stated that “there has been widespread agreement that some deportations were unfair and resulted in unjustifiable hardships…we must ask why the INS has pursued removal in such cases when so many other more serious cases existed…The principle of prosecutorial discretion is well established.”
You may also wish to consult the June 17, 2011 ICE memo on Exercising Prosecutorial Discretion and its relationship to the very practical matter of resource limitation as it affects prioritization.
Except prosecutorial discretion by it’s very nature involves prosecutors making a determination on a case-by-case basis, with the ability to actually enforce the law if they so choose.
But if the President says “We’re not going to let individual prosecutors make a decision to prosecute a certain offense because I’m announcing a blanket policy of [fill in the blank]” then that’s not the same thing.
But whatever, right?
Sure, let’s have the President pick and choose which laws to enforce based on his policy positions. That sounds like a super-duper awesome form of government.
I guess I’ll just look forward to the day a Republican President says it’s in his “prosecutorial discretion” not to enforce the top two tax brackets, the capital gains tax, the NFA of 1934, securities regulation laws, or maybe even any laws relating to the environment, union rights, or tariffs.
It’s a brave new world. I’m glad President Obama figured out this cool “prosecutorial discretion” thing that all our other Presidents missed out on up to now.
@Bryan
But, but, but what about THE CHILDREN?!?
“Except prosecutorial discretion by it’s very nature involves prosecutors making a determination on a case-by-case basis, with the ability to actually enforce the law if they so choose.”
Apparently not. Again I quote the ICP:
“Is Prosecutorial Discretion Always Case by Case?
No. Prosecutorial discretion can be exercised on either an agency-wide basis or by an individual officer or employee. The August announcement by DHS, implementing enforcement priorities on an agency-wide basis, is an example of an agency’s exercise of prosecutorial discretion with respect to how to spend its resources. USCIS exercised its prosecutorial discretion when it adopted a new policy establishing a procedure for surviving spouses and children of deceased U.S. citizens, who were no longer eligible to apply for permanent residence, to apply for deferred action.”
“I guess I’ll just look forward to the day a Republican President says it’s in his ‘prosecutorial discretion’ not to enforce….”
Actually, at least two Republican presidents, Reagan and GHW Bush, have already exercised prosecutorial discretion with respect to immigration law — in dealing with the failure of the 1986 Immigration Reform and Control Act to take into account the spouses and children of previously unauthorized immigrants whose status was legalized under the act. The two Republican administrations chose to exercise discretion in extending coverage to these family members, amounting to some 1.5 million people.
Lastly, I commend to your attention the letter signed by 136 law professors stating that the president has legal authority to protect individuals or groups from deportation:
https://pennstatelaw.psu.edu/_file/Law-Professor-Letter.pdf
Cool. I’m fired up about a Caskey Administration where I tell the IRS and the EPA to stop all enforcement of stuff I don’t like.
Delahunty and Yoo wrote a paper about Obama’s lack of enforcement of immigration laws and the paper referenced was a response by Shoba Sivraprasad Wadhia in defense of Obama’s policies and enforcement. The opinion writers are all well educated and well versed in the law and just as the Supreme Court cannot reach a unanimous agreement on most decisions, there are perhaps just as many other law professors who disagree with the law professor(s) who wrote the opinion piece agreeing with Obama’s authority.
So far, including myself, all we have succeeded is to respond and reply using opinion papers submitted from both sides of the issue. Therefore, anything you or I pose is our opinion on the issue of Obama issuing or threatening to issue a blanket immunity for 5 million illegal immigrants.
In brief, the threat by Obama is a political move – period. If he carries through with his threat, eventually, it will reach the SCOTUS for a final decision. It is a potato so hot, it cannot be ignored and at some point, a final decision must be reached concerning presidential limits of authority. When considering issues like this one, we need to consider the impact it will create on future events and decisions by a president. That is the fear or should be the fear from both sides of the aisle. Consider the fact that Reid exercised the nuclear option in the Senate and now that Republicans are in control, the likelihood it will come back to bite him in the butt is very high indeed. Be careful what you wish for or actions you take, they do have consequences.
T. Prince,
Not to be disrespectful but your reply is another strawman to deflect from the issue of the president overstepping presidential authority by threatening to issue a blanket immunity to 5 million illegal immigrants.
Since 1975, what was at the time, INS, prosecutorial discretion has been in effect. After 9/11, Homeland Security took the department under its authority. Even with the move, prosecutorial discretion was still to be exercised at all times when deciding who should be deported because of illegal alien or immigrant status. The Morton memos only reinforced what was existing and added more exceptions and clarity on who or what the department’s limited resources should concentrate on enforcing. Based on the long list of considerations to be accounted for, about the only thing ICE should concentrate on is criminal activity, gang activity, or potential threats to the country. The authority to exercise prosecutorial discretion was given to ICE staffers only.
Prosecutorial discretion has always been with us and is an accepted part of our legal system whether at the ICE or in any other court system. But, in this case, is the POTUS a prosecutor in this instance? No, he is not, he has made the conscious decision to become the sole arbiter when it comes to granting immunity to 5 million illegal immigrants, a decision which far exceeds his presidential authority. If the immunity decree involved a few select cases where deportation was inherently unfair and if the cases had been brought before the legal system and if a legal decision had been handed down and the defendants found guilty of breaking the immigration laws, at that point the president, whoever he or she may be at the time, can issue a presidential pardon. Otherwise, what is the point?
Blanket immunity, I think not and none of the references you cited addressed the issue of blanket immunity for large masses of illegal immigrants by the president.
This is about abuse of power, no matter if it is a Democrat, Republican, Libertarian, or which political party is in power.
No strawman here. A very rigorous and virile man!
I would respectfully point out, just in passing, that the statutes you cited do not relate directly to the immigrant’s status itself but rather to aiding and abetting, employing, harboring, etc. Therefore, it might be said that those citations merely deflect from the matter at issue here. But that just in passing.
“The authority to exercise prosecutorial discretion was given to ICE staffers only.”
Sure, but under guidance and direction provided by the Secretary of Homeland Security, who in turn acts under the direction of the President, who is exercising his implementing authority.
Contrary to your claim that none of the cases cited was related to blanket immunities, they all were: in 1981, 1990, 2005 and 2007 — each instance an example of deferment of removal based on presidential exercise of discretion (all Republicans). Moreover, it’s important to bear in mind that exercising discretion does not automatically grant legal status, it merely provides relief from deportation.
Lastly, the claim that the president has been remiss in fulfilling his obligation to prosecute removals is revealed as untrue by the roughly 2 million removals that have taken place during his term in office.
I do not know whether carrying out the threat to exercise discretion, as the president has said he might, will prove to be politically wise. But it seems clear that it would be legal.
Thanks for the comments. I will agree to disagree and respect your position on the matter as it relates to the opinions you prefer to use for support. However, there are other legal scholars who are not in agreement that the president is acting legally if he does issue blanket immunity without due cause as in the case when Bush issued immunity to foreign students after Katrina. It was an immediate need at the time because of circumstances surrounding their situation. And, if not mistaken, the students were here legally, not illegally. With the exception of the Reagan immunity which was done with bipartisan agreement, most of the other examples were based on actual circumstances and need, not political gamesmanship. Even the Reagan action was taken after recognizing the enormity of the illegal immigrant problem and that it was a potential Gordian’s Knot situation. The fix didn’t produce the intended results.
All of the examples used for your defense of the potential use of blanket immunity were based on legitimate needs and in each instance was supported with sufficient information and evidence to allow it. In this one before us now, it is basically nothing more than a politically motivated move by the president, nothing more.
“Moreover, it’s important to bear in mind that exercising discretion does not automatically grant legal status, it merely provides relief from deportation.”
Perception of the statement is that if I am an illegal and one of the 5 million, even if I am identified, the laws affecting the status of being an illegal will not be applied and apparently, I cannot be prosecuted or deported for being here illegally. Maybe it will encourage Mad Magazine’s Alfred E. Neuman philosophy when it comes to the law, “What, me worry?”
What is “politically motivated” lies in the eye of the beholder. I would think that 5 million, or whatever the number may be, would constitute not only a legitimate need, but a burning one. Oh, and as for gamesmanship, that cuts both ways. It would have been nice if Boehner had allowed the bipartisan immigration reform bill to come to a vote in the House in 2013. But rather than act as Speaker of the House, he instead chose to be the Speaker of the Republican Party.
Last comment, as far as I am concerned, the horse is dead and has no flesh left to beat on the subject.
After reading the president’s proposed immunity and who will be affected, there is not one thing in it that has not been used as a guideline for INS/ICE/HSA for well over a decade and most of the considerations have been around since 1975. It begs the question about what is his reason for proceeding with it and what is the bitching about coming from Republicans? If they want to butt heads and keep the country in a constant state of division, put on uniforms, get out on a football, soccer, or rugby field and go at it without referees.
“The following is just a few examples of federal immigration laws.” Apology, should be “The following are a few examples of federal immigration laws.”
Heterosexual Privilege
http://itspronouncedmetrosexual.com/2012/01/29-examples-of-heterosexual-privilege/
Excuse for changing the subject,but same-sex marriage has changed so rapidly.I remember voting with Mike in 1996,and he said gay marriage would never be legal in SC.Twelve years later,he died.Even if things go awry,and don’t happen right away,it does give me faith that sometimes justice does prevail,even though Brad’s friends at Palmetto Family Council are apoplectic,they’ll eventually have to accept that they were wrong.
Immigration is easy-If you can get here,you have the right to be here,just like everybody else.
I like that Bill is always ready with a music video…
I’m not really familiar with the Lemonheads, beyond their cover of “Mrs. Robinson.” Perhaps I can discover them belatedly, as I did Radiohead. Speaking of bands ending with “head”…
Your “Heterosexual Privilege” list omits:
– Being able to conceive and birth children that share the genes of both committed partners.
– Being able to take a stroll with one’s committed partner in countries governed under Sharia.
Just sayin’.
Not being a capital crime in some African countries for just existing.
In a perfect world, that’s true,but after conception,they don’t always stay committed,and gay uncle ends up raising their child.
https://www.youtube.com/watch?v=GZjoGOhlf8U
‘stroll’ sounds kinda gay
Great points on the exec order situation by Harry & Lynne. This is a link to ref Reagan’s and Bush Sr.’s actions. Wonder why they weren’t threatened with impeachment?
http://www.huffingtonpost.com/2014/11/15/reagan-bush-immigration-deportation_n_6164068.html?utm_hp_ref=politics
Racism. Obviously.