Hicks saga continues

[Econoline]

who has said that that was ok?

The Republican party. The same party that now says it's unconstitutional.

[Lord Jim]

Reagan and Bush Offer No Precedent for Obama's Amnesty Order



“What about Reagan in 1987? And George H.W. Bush in 1990?”

This has become a favorite Democratic and center-left rebuttal to Republicans angry at reports that President Obama may soon grant residency and working papers to as many as 5 million illegal aliens. If Obama acts, he’d rely on precedents set by Republican predecessors. Surely that should disbar today’s Republicans from complaining?

Surely not, and for four reasons.

1) Reagan and Bush acted in conjunction with Congress and in furtherance of a congressional purpose. In 1986, Congress passed a full-blown amnesty, the Simpson-Mazzoli Act, conferring residency rights on some 3 million people. Simpson-Mazzoli was sold as a “once and for all” solution to the illegal immigration problem: amnesty now, to be followed by strict enforcement in future. Precisely because of their ambition, the statute’s authors were confounded when their broad law generated some unanticipated hard cases. The hardest were those in which some members of a single family qualified for amnesty, while others did not. Nobody wanted to deport the still-illegal husband of a newly legalized wife. Reagan’s (relatively small) and Bush’s (rather larger) executive actions tidied up these anomalies. Although Simpson-Mazzoli itself had been controversial, neither of these follow-ups was.

Executive action by President Obama, however, would follow not an act of Congress but a prior executive action of his own: his suspension of enforcement against so-called Dreamers in June 2012.

A new order would not further a congressional purpose. It is intended to overpower and overmaster a recalcitrant Congress. Two presidents of two different parties have repeatedly called upon Congress to pass a second large amnesty. Congress has repeatedly declined. Each Congress elected since 2006 has been less favorable to amnesty than the previous one, and the Congress elected this month is the least favorable of all. Obama talks as if Congress’s refusal to fall in with his wishes somehow justifies him in acting alone. He may well have the legal power to do so. But it hardly enhances the legitimacy of his action. Certainly he is not entitled to cite as precedent the examples of presidents who did act together with Congress.

2) Reagan and Bush legalized much smaller numbers of people than Obama is said to have in mind. While today's advocates cite a figure of 1.5 million people among those potentially affected by Bush's order, only about 140,000 people ultimately gained legal status this way, according to U.S. Immigration and Customs Enforcement data as reviewed by Mark Krikorian of the Center for Immigration Studies. (Updated: Krikorian reconsidered the numbers and now concludes the true figure is even lower—less than 50,000.) Obama’s June 2012 grant of residency to the so-called “Dreamers”, people who were brought to the United States illegally as children, could potentially reach 1.4 million people. His next round of amnesty, which is advertised as benefiting the parents of the Dreamers and other illegal-alien parents of U.S. resident children, could reach as many as 5 million people.

Put it another way: If all the potential of Obama’s past and next action is realized, he would—acting on his own authority and in direct contravention of the wishes of Congress—have granted residency and work rights to more than double the number of people amnestied by Simpson-Mazzoli, until now the most far-reaching immigration amnesty in U.S. history.

As the philosopher liked to point out, at a certain point, a difference in quantity becomes a difference in quality.

3) The Reagan-Bush examples are not positive ones. The 1986 amnesty did not work as promised. It was riddled with fraud. The enforcement provisions were ignored or circumvented. Illegal immigration actually increased in the years after the amnesty. The supposed "once and for all” solution almost immediately gave rise to an even larger version of the original problem.

The argument that “Reagan and Bush did it,” is essentially an argument that future generations should not learn from the errors of previous generations. With the advantage of experience, it is clear that their decisions did not produce the desired result, and actually greatly worsened the problem they sought to solve. Let’s not repeat their mistake.

4) The invocation of the Reagan and Bush cases exemplifies the bad tendency of political discussion to degenerate into an exchange of scripted talking points. “Oh yeah? Well, this guy you liked also did this thing you don’t like!” Is that really supposed to convince anybody? What we have here is not a validation of the correctness of President Obama’s action. It’s the shaking of a fetish, an effort to curtail argument rather than enlighten it.

It’s a style of argument borrowed from the late-night cable-comedy shows, in which a clip of somebody saying something at some point in the past is supposed to stop that person—or anybody in any way connected to him, or supportive of him, or even mostly but not entirely admiring of him—from ever saying anything different in the future. But a zinger is not a rebuttal. In this case, with all the huge differences between Obama’s situation and those of his predecessors, it does not even zing.

http://www.theatlantic.com/politics/arc ... ty/382906/

So, to summarize, the amnesties under Reagan and Bush 41 were relatively modest fine tuning actions (and as I recall they were based on the President's Pardon Power, not this tortured and disingenuous interpretation of "prosecutorial discretion" bull puckey) that were issued in furtherance of a law passed by the Congress...

While Obama's action is a sweeping massive new program imposed in order to directly contravene and thwart the will of the Congress...

Seems like there's a slight difference there...

[Crackpot]

You mean the will of congress to do nothing?

[wesw]

that is congress' right, as o co-equal branch of govt., no?

if you don t like it, vote the bastards out, don t usurp congress' lawmaking power.

[Lord Jim]

In his folksy way, wes has hit the nail exactly on the head...

I've said it before, and I'll say it again...

We should have a comprehensive immigration bill...

It's both the right thing to do ethically, and the smart thing to do politically...

But if the members of the United States Congress choose to have their collective heads up their collective asses, and choose not to change the existing law, that is their prerogative; it is up to the voters in their respective districts and states to hold them accountable...

Not The President Of The United States... The President does not get to create new law simply because he is frustrated by inaction on the part of the Congress...

A lot of folks don't seem to understand how this "prosecutorial discretion" argument ( should the Administration prevail before the Supreme Court; which I think is a coin toss...) has implications far beyond the immigration question...

What if a future Republican President, unable to get the tax cuts he wanted through the Congress, were to declare that he would direct the Justice Department to use "prosecutorial discretion" to no longer pursue businesses that didn't pay corporate taxes, or individuals who didn't pay capital gains taxes?

How would Liberal Democrats on Capitol Hill react to that? (The words, "scream bloody murder" come to mind...)


I think there's a very good chance that Obama has been too cute by half in trying to shoe horn this program under "prosecutorial discretion"...

If instead he had set it up under the President's Pardon Powers, (like Gerald Ford's amnesty program for the draft dodgers who ran off to Canada) he would have been on much stronger Constitutional footing, and there could not have been any serious court challenge...(The Court has been pretty clear in repeated decisions that the President's power to grant pardons and clemencies is absolute; even if made conditional...)

But of course if he had done that, he would have had to admit that this is an amnesty program...

He wanted to have an amnesty program without admitting that it was an a amnesty program, and that has put him in a bit of a Constitutional box...

[Econoline]

The facts remain: the cost of deporting all 11.5 million illegal aliens would be $239 BILLION (plus $17 billion each year thereafter for continued enforcement). Immigration and Customs Enforcement currently has a budget of $5.34 billion (the entire DHS budget is around $60 billion.)

And Congress has given the Executive branch *NO* guidelines (= total discretion) as to exactly which 400,000 people to deport each year, and which 11 million to leave alone. If the President doesn't have the authority to make that call, who does?

[wesw]

oooooo, big scary numbers! screw the constitution! the big scary numbers are coming!

[Crackpot]

Now that is a dumbass reply if I ever saw one.

[rubato]

Congress has refused to govern on this issue for 2 years now. The president has to be the grownup and address the problem.

Boehner and the Republirats needs to learn that merely hating Obama does not lead to effective government.


yrs,
rubato

[Big RR]

What if a future Republican President, unable to get the tax cuts he wanted through the Congress, were to declare that he would direct the Justice Department to use "prosecutorial discretion" to no longer pursue businesses that didn't pay corporate taxes, or individuals who didn't pay capital gains taxes?

Jim--they might well vote to impeach him, and Congress could try the same with Obama now. Or they might vote to change the law and compel the prosecution (although such a law may not be constitutional). Face it, this is the sort of thing the executive has done again and again; look at the enforcement of SEC laws and rules depending on which side is in the white house. Or drug laws (is medical marijuana getting a pass from the feds). Or some of the civil rights inaction that prompted the freedom riders to act. I imagine taxes could be the same thing (but let's not forget many states would still insist on their taxes being paid).

[Econoline]

By appropriating only enough money to deport 3% of the illegal aliens each year, Congress has clearly signaled that they are approving of--nay, insisting on--some sort of prosecutorial discretion. By not setting any clear criteria for the application of this prosecutorial discretion, Congress has clearly delegated that task to the Executive branch, which is charged with enforcing whatever legislation the Legislature passes.

(Is that better, wes? Same argument, no scary numbers...okay? The number 3 isn't too big, is it?)

Jim - if I understand you correctly, what you object to is not prosecutorial discretion per se, or even the setting of some criteria for which cases to prioritize, but only to the establishment of a mechanism to determine which cases meet those criteria and whether those criteria are in fact met in any particular case. Is that correct?

[wesw]

well, I was going for smart assed , but dumb assed is close.....

[Lord Jim]

By appropriating only enough money to deport 3% of the illegal aliens each year, Congress has clearly signaled that they are approving of--nay, insisting on--some sort of prosecutorial discretion.

"Prosecutorial discretion" that involves setting up a whole new program, with registration and sign up procedures and the issuing of social security cards?

I think that's a huge stretch....


I'm sure the "consent of Congress is implied because of the failure to allocate sufficient funds to fully enforce the law" is the argument that the members of the SC who vote to uphold this will buy...

The question is are their four or five Justices that will buy this argument...

Congress almost never appropriates enough money to solve any problem; does that give The Executive carte blanche to do whatever the hell it chooses?

Econo, I return again to my analogy about the hypothetical President who uses "prosecutorial discretion" not to go after corporations that don't pay taxes, or individuals that don't pay capital gains taxes... (afterall, the Congress certainly doesn't appropriate enough funds to go after every person who doesn't pay their taxes)...

Would you think that was perfectly acceptable? (Aside from the fact you would obviously disagree with the policy of course) Do you believe a President would be within his rights under "prosecutorial discretion" to impose that policy?

And if not, what do you see as the difference? It looks to me like the exact same set of considerations are involved...

[Econoline]

Jim - *IF*--and only if--Congress did not allocate sufficient resources to collect a particular tax AND did not legislate guidelines as to which offenders to "go after"...yes, the situations MIGHT be similar. But isn't that exactly what happens now? Doesn't the IRS, in the face of insufficient resources to go after all possible tax offenders, prioritize going after offenders from whom they are likely to recoup enough revenue to pay for the effort? So yes, a future President might well be able to order the IRS to prioritize the "small fish" over the "big fish" (and thus reduce collected revenues even more)...but I would imagine that while such a policy might be constitutional, it would be so unpopular with both Congress and the vast majority of ordinary US citizens--not to mention just plain fiscally STUPID--that Congress would have to quickly step in and legislatively change the priorities. As they are certainly free to do with the President's current I.C.E. enforcement priorities.

BTW, you didn't answer the question I put to you at the end of my previous post. ("Jim - if I understand you correctly, what you object to is not prosecutorial discretion per se, or even the setting of some criteria for which cases to prioritize, but only to the establishment of a mechanism to determine which cases meet those criteria and whether those criteria are in fact met in any particular case. Is that correct?")

[MajGenl.Meade]

Well, I think we could get each deported immigrant to carry another one on their back - so that's twice the bang for the buck right there. And perhaps we could march them to the border - doesn't matter which one really - and force them over it. A couple of Stukas out of mothballs and we'd be all set.