Revenge of the Ditz Lord

Having been clobbered in the midterms, the president put on his cockiest face and strut, and in a carefully orchestrated setting designed to make him look imperial poked a thumb in the eye of the newly-elected Congress by announcing that he would not deport the people he was already not deporting. The next day the House of Representatives sued him for overreaching on ObamaCare, but despite a lot of understandably outraged yammering,  it is not likely to follow suit or at least succeed in similarly challenging on constitutional grounds his immigration executive order.

True, at the heart of both of these is the president’s inability and unwillingness to respect the constitutional separation of powers in appropriating for himself the functions of both the legislative and executive branch, knowing full well the lengthy process involved in litigation to undo his outrageous behavior.

Democrats who rush to defend the indefensible would like you to forget that the president himself on over 20 occasions stated that the president lacked the power to significantly expand the Deferred Action for Childhood Arrivals (DACA) order.

Roll Call took up Obama’s previous exegeses with White House higher-ups speaking on background: ‘As for Obama’s many statements that he did not have the authority to significantly expand DACA, the answer from the White House was muddled.’ Do tell! The answer, my friend, is blowin’ in the wind.”

They would like to have you ignore the fact that this is largely a face-saving gesture with unknown consequences. The president’s action was designed to outrage the newly-elected Congress and his opponents, but unlike the ObamaCare overreaching, the action seems at first blush less vulnerable to constitutional challenge. For all Obama’s preening, the executive order is more constrained than it might appear, less popular among Latinos and but still subject to possible  constitutional  and other legal challenges.

Illegal immigrants here -- and they are here against the law and are not, as the left would have you believe, merely “undocumented”-- are not so enamored of the substance of the announcement as the White House may have wanted.

“It’s a small bandage for a large wound,” said Maria Reyes, 68, an illegal immigrant from Mexico who lives near Oakland, Calif. She was waiting outside the White House on Thursday evening after fasting there for several days. Although her two children were granted deportation relief through the 2012 “Deferred Action for Childhood Arrivals” program, they will not be able to confer legal status on her.

There were also several million illegal immigrants who never stood a chance of reprieve under Obama’s plan, especially adult men who left their families behind and came to work in the United States illegally. Some Central Americans obtained temporary protection as war refugees, but many could not convert that to permanent legal status, while Mexicans -- the great majority of undocumented immigrants -- had no such benefit.

Indeed, even among Latinos, the principal beneficiaries of this order, support was far from overwhelming on the president’s bypassing Congress:

A six-percentage-point margin of approval is far short of overwhelming. A higher number of Latinos, 56 percent, told pollsters they would support congressional action on the issue, and 69 percent supported the idea of a pathway to citizenship for those now here illegally. But a core of Latinos opposed those measures too: 32 percent opposed congressional action, and 30 percent opposed a pathway.

And even more oppose unilateral Obama action. It turns out Latino support for the president’s strategy, which doesn’t even amount to a majority, is not quite as decisive as some advocates hope.

As usual, Iowahawk most succinctly outlines the situation: “IowaHawk: “LOL at all those Latin American immigrants who came here to escape tinpot dictatorships.”

Perhaps they’ve had enough of tinpot dictators to know one when they see him, and prefer the same constitutional order that we do.

In any event once again the president ignores the impossible administrative and legal burdens of his action:

How exactly is that going to work? What if somebody has been using a fake Social Security number for five years while working in America? That’s identity theft. Are we not going to prosecute it?

Hugh Hewitt noted:

The people in the country illegally will know shortly that this stunt tonight does not help them and may in fact hurt them -- badly. The collision of what is in essence a letter of recommendation from the president to employers with their genuine worries about liabilities under state law and about their fiduciary duties to their customers is going to be instant, and not to the good of the illegal population. Employers are going to flee the president’s testimonial that, if he were king of the forest, not queen, not duke, not earl, he’d let this person have a green card. Because he’s not king, he cannot bless this person’s employment in the real world of tort liability and state law. He cannot solve the issue of Social Security and unemployment insurance withholding. What he can --and will do tonight -- is mark the illegal as someone not worth the trouble of hiring.

The president simply cannot bestow a green card.  Just a blessing.  An Obama blessing.  The blessing of a cheater.

The president’s lawless act will have the apparently contradictory impact of both making life harder for “those in the shadows” by increasing the reluctance of employers to hire the obviously illegal, while at the same time attracting millions more north across the fenceless border.  Employers are simply going to be less willing to hire the obviously illegal because of a host of other laws the president cannot change.

And the Hayride added:

In other words, this doesn’t give any incentive for illegals to come out of the shadows and get right with the law. Not for a temporary reprieve. If they’ve managed to stick around and not get deported so far, either because they’re being employed off the books or because they’ve got a fake Social Security card, and Obama just said it’s not realistic for the government to find them and deport them, then why would they change anything based on this? Coming out of the shadows for a temporary blessing isn’t much of a deal.

The folks in Guadalajara and Tegucigalpa who want to come here probably look at this as an invitation to come here. The folks already here won’t see this as much of a change.

It is interesting to read the restrictions on the president’s power the Department of Justice’s Office of Legal Counsel (OLC) made on this executive order.

First, we learn that the President did not obtain an OLC memo for his 2012 DACA [Deferred Action for Childhood Arrivals] program. Rather, only oral advice was given. We also learn that OLC limited DACA, and explained that the deferred action could not be given as a class. Rather it must be given on a case-by-case basis.


Second, based on this initial device, the OLC memo makes a very strong effort at crafting a line between prosecutorial discretion and abuse of discretion. While there are many citations to Hackler v. Chaney, the argument boils down to this point: when deferrals must be made on a case-by-case basis, this does not amount to an abdication of enforcing the law, and a transformation into rewriting the law.


Third, the memo explains that deferring deportations of parents of U.S. Citizens or Lawfully Present Residents is permissible, because there is a path to citizenship for the parents, through the kids.


Fourth, the memo makes clear that the parents of the DACA recipients are not eligible for deferrals due to the very important reason I noted yesterday – they do not have a pathway to citizenship. Therefore, this would not be a temporary gap.


Fifth, the memo address whether size matters. In effect, addressing whether this unprecedented expansion of power is lawful. First, it concedes that the size of the program exceeds that of any previous deferred action.


I pause to note that this is a remarkable limitation imposed by OLC on the President’s power. I am very glad to see this actually exists. Though, it seems that DHS was okay with this authority.

Sixth, the memo repeats at several points a discussion of acquiescence. Congress has acquiesced to the President’s deferred action, and given the Executive a de facto license of sorts to proceed.


Seventh, in perhaps an indirect reference to attempts to defund the program, the memo notes that the action would be “borne almost entirely” by application fees–something Congress arguably cannot touch. I don’t think this point was inadvertent, as there are already debates about whether program can be defunded.


Eighth, as for the line-drawing issue, the memo seems to acknowledge that Youngstown controls, and that executive discretion cannot be absolute.

Immigration officials’ discretion in enforcing the laws is not, however, unlimited. Limits on enforcement discretion are both implicit in, and fundamental to, the Constitution’s allocation of governmental powers between the two political branches. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587– 88 (1952).

In sum, I think the speech was a bit of a bluff, designed to show he retains some relevance when, in fact, he has little. It is not a sure winner among the targeted class. It will leave Congress with opportunities to challenge it legally but only a small window (for example, the large number of people covered or blanket, rather than case by case, adjudications) within which to challenge the order on constitutional grounds. But there remain countless practical obstacles to making this order achieve what its detractors fear -- a wholesale backdoor grant of permanent residency and a path to citizenship. It will, nevertheless, encourage even more illegals to cross the border in the mistaken hope that they can receive legal status. It will create legal and administrative chaos.

Congress’ best moves include using its powers to tighten border security and enforcement of lawful deportation orders, rewriting the immigration laws along more rational and equitable lines, censuring the president, and in every possible way limiting his freedom to repeat such outrages. Push should lead to shove.

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