A Political DREAM

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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106 Responses

  1. wardsmith says:

    Mark you’re the lawyer here, but talking with my friend, attorney and ex-dean of a major Jesuit law school, this “memo” will be declared unconstitutional by SCOTUS. You’re right, he could have played it differently, it is almost as if he’s spoiling for a fight so he can make populist speeches about judges “legislating” from the bench. It is almost as if this constitutional professor has decided he’s figured out a way to undo the constitution he’s been sworn to uphold and defend.Report

    • Honestly, even as much as I hate how they did this, I still can’t see any way that you get to the point of it being declared unconstitutional. First of all, you’ve got to find someone with standing; I do not see this rating as the sort of thing over which Scalia et al would be prepared to undo their own decades’ worth of work on trimming the types of allowable standing in order to reverse the administration. Nor do I see the conservative wing of the court making a move to scale back Heckler anytime soon, which is something of a cornerstone of conservative jurisprudence.

      Frankly, I expect you’d have a better shot of getting the liberal wing to go along with you on this than most of the conservative wing.Report

      • wardsmith in reply to Mark Thompson says:

        I’m not saying it wasn’t Machiavellian and brilliant, clearly it is. By the time someone figures out how to take it to court, by the time they get heard, by the time they get to appeal, the thing will have sunset. Don’t imagine for a nanosecond that all this wasn’t considered in advance. The video I linked to has Obama talking for 3 minutes on the justification of the law and the last 10 seconds declaring that SCOTUS had better not overturn it. He staked out the moral high ground if not the legal groundwork. As always for those concerned about these things is the precedence which is established. Will future presidents govern by executive decree, ignoring the other two branches of government? What happens if their morality is suspect?Report

        • James B Franks in reply to wardsmith says:

          Will future presidents have to deal with a minority party that refuses to work with the administration? That has stated that it’s primary goal is not the good of the country but the defeat of the sitting president?Report

          • M.A. in reply to James B Franks says:

            Depends; will future presidents have to deal with a minority party that believes them to be foreign-born on account of skin color?Report

          • wardsmith in reply to James B Franks says:

            Past presidents had EXACTLY this kind of conflict with minority parties. They weren’t quite so thin-skinned as this one however. Perhaps you can give a link supporting your second contention? If not I’ll just chalk it up to left-wing hyperbole.Report

            • MikeSchilling in reply to wardsmith says:

              Past presidents had EXACTLY this kind of conflict with minority parties.

              That they used the filibuster to anything close to the same extent? I don’t think so.Report

              • wardsmith in reply to MikeSchilling says:

                Brush up on your history there Mike. I could bring up the filibusters that went on for days against the Civil Rights Act, but that would be embarrassing… to the Democrats… since they were the ones doing it against a Democrat president. What has changed is in the old days, Senators actually had to stand up there and keep talking, nowadays they just THREATEN to do that and Reid hides under his desk. Show me the videos of current Republican Senators reading from the phone book or the Bible as has been done in the past in marathon sessions.Report

              • MikeSchilling in reply to wardsmith says:

                That’s not my point, though. How many now vs. how many then? And don’t forget the outrage during the Bush administration that the Democrats might, sometime in the future, filibuster a judicial appointment.Report

              • Stillwater in reply to wardsmith says:

                to the Democrats

                And into whose arms did those filibustering Democrats flee precisely because CRA past?

                And regarding filibusters, there this from the Brennan Center:

                “Throughout the 1990s, there were, on average, about 29 filibusters per congressional session. This number is ever increasing: there were 32 filibusters in the 107th Congress, 27 in the 108th, and 36 in the 109th. In the 110th Congress, there were approximately 52 filibusters — a 44 percent spike from the prior session. The current Senate hit its “golden” 50th filibuster in mid-April of this year”Report

              • wardsmith in reply to Stillwater says:

                The current definition of “filibuster” is bullshit:

                Whether or not you think we should abolish or weaken the filibuster, there is one thing we can all agree on: the filibuster should be a real filibuster. If Senators are going to prevent a nomination or piece of legislation from receiving an up or down vote, they should have to take to the well of the Senate and engage in an all-night talk-a-thon explaining their position.

                Right now, Senators can filibuster by heading off to dinner, going to the dentist, or any other form of simply not showing up. The filibuster is painless, and does not require any effort.

                It’s time for that to change. And, on January 5th, only a simple majority of Senators can make that change. As such, Daily Kos is teaming up with two of the leaders of the Senate rules reform effort–Senator Jeff Merkley and Senator Tom Udall–to show all Senators there is broad grassroots support for making the filibuster a real filibuster.Report

              • Brandon Berg in reply to wardsmith says:

                Whether or not you think we should abolish or weaken the filibuster, there is one thing we can all agree on: the filibuster should be a real filibuster.

                Not me. I’m quite happy with a de facto 60-vote supermajority requirement to pass legislation.Report

              • Stillwater in reply to wardsmith says:

                The current definition of “filibuster” is bullshit:

                That may be. What relevance does it have to the topic?Report

              • wardsmith in reply to wardsmith says:

                Because the definition of “filibuster” has changed, the statistics on “filibustering” are fatally flawed. To put it in sports terms it is like comparing scoring records from before there was a 3 point shot and a shot clock. It is of course far worse than that here.

                Reid could pull up his panties and demand that they put up or shut up, but the good old boys club that the Senate has become doesn’t want to change the country club atmosphere and Reid is perpetually worried (with good reason) that he will soon be in the minority and doesn’t want to have to work from that side any harder than he has to.Report

              • BlaiseP in reply to wardsmith says:

                The policy of secret holds is more damaging than the filibuster.Report

              • Patrick Cahalan in reply to wardsmith says:

                Agreed on the secret holds, which really has no justification in a representative democracy at all.Report

              • Stillwater in reply to wardsmith says:

                Ward, have the types of filibuster permitted changed in the last twenty years?

                And I’ll second BP on secret holds.Report

              • Jaybird in reply to wardsmith says:

                I don’t know if the types of filibusters today are comparable to the filibusters of yore… if only because the ones of yore required someone to stand there and read from the phone book until either he grew hoarse, had to poop, or passed out while at least 60 people from the other side of the issue were willing to sit there and keep quorum… and meanwhile *NOTHING GOT DONE*.

                Today’s filibuster just has people say “We’ve got this here bill!” and the opposition says “filibuster” and they take a vote and if they don’t hit 60, they move on to the “School Lunches For Children And Backrubs For Senators Bill” and then run off to the backrub room.

                Folks like the second one a lot more because they can still do stuff.

                (I’m a fan of the old school, myself. Gotta love nothing else getting done.)Report

              • wardsmith in reply to wardsmith says:

                The filibuster (which means pirate in Dutch) rules were changed in 1975 from the (previous) 66 votes to end cloture to the current 60 and added the “invisible filibuster” which means a senator merely had to threaten it. A long cry from the 24 hours plus that Strom Thurmond (D-SC) fought against CRA in 1957 (successfully).

                Invisible filibusters, secret holds does anyone else see a pattern here?Report

              • Ryan Noonan in reply to wardsmith says:

                My absolute favorite insane thing conservatives say on the internet is Liberals Are The Real Racists. Its close cousin, which I also have some fondness for, is Democrats Are The Real Racists.

                The bonecrushing irony of putting “D-SC” after Strom Thurmond’s name is merely the icing on the cake.Report

              • Stillwater in reply to wardsmith says:

                Well, the southern Democrats were the real racists during the civil war era, no doubt. But now that southerners are Republicans, they aren’t racist anymore!Report

              • Ryan Noonan in reply to wardsmith says:

                This is, of course, why the irony of calling Strom Thurmond a Democrat crushes my bones.Report

              • BlaiseP in reply to wardsmith says:

                We must remember the dynamics of Reconstruction and the decades of vindictive occupation at the hands of the Republicans. The South went Democratic with a vengeance, simply because they hated the Republicans.

                When the Democrats under LBJ took on the burden once shouldered by the Republicans of Lincoln’s era, the rights of black persons in the face of systematic discrimination, the South would go Republican, not because they particularly liked their policies, but because they hated what the Democrats had become.

                The political parties are rather like religions in a way. Religion is a big old nothing, a framework, a coat hanger upon which beliefs are hung. Politicians, like the rest of us, are defined by what they do, not what they say. The GOP doesn’t have a racist bone in its body. It has, however, whittled a few of those racist bones into flutes it has used to lure first the rats, then the children of Hamelin Town out into the mountains, never to be seen again.Report

              • Mr. Blue in reply to wardsmith says:

                What BlaiseP said.Report

              • MikeSchilling in reply to wardsmith says:

                The filibuster (which means pirate in Dutch) rules were changed in 1975

                So it’s fair to compare the filibuster rates of the last two Congresses to those of the previous 30-odd years? Good.

                They’re much, much higher.Report

              • Tom Van Dyke in reply to wardsmith says:

                FTR, only one of the 18 filibustering Democratic senators [incl Al Gore Sr and St. Sam Ervin] joined the GOP, Thurmond. The rest remained Democrats in good standing.Report

              • wardsmith in reply to wardsmith says:

                Tom! How dare you let FACTS stand in the way of fiction! The fiction is the Democrats are the party that freed the slaves, the Democrats care for the blacks (notwithstanding the FACT that everywhere blacks are suffering a Democrat is in charge) and that only Republicans were against the Civil Rights Act. Oh and of course that EVERY southern Democrat came over to the Republican side (all one of them). Tsk Tsk, no wonder you’re so hated on this site.Report

              • Tom Van Dyke in reply to wardsmith says:

                I’m secretly admired. They email me all the time.Report

              • BlaiseP in reply to wardsmith says:

                Heh. The Republicans did their best to slime and impeach another sitting Democratic president, Andrew Johnson for the crazy idea of implementing Lincoln’s plan for the South, of “letting them up easy”.

                The GOP hasn’t changed a bit. Lincoln was the only sensible man they ever elected to high office and even he was a bit of a waffler and fence rider. If the GOP embraced the vile Dixiecrats and Nixon courted them, he was hardly alone.

                The GOP hasn’t elected an honest man since Lincoln. Well, there was George HW Bush, but he had some stinky ol’ Iran-Contra and Lebanon doo-doo on the heels of his shiny wingtips, so we can’t really call him anything but a realist, honesty being rather beyond him.Report

              • Wardsmith,

                There is such a concept as “things change over time.” Only a fool or a liar would suggest that the Democrats of today are exactly the same as those of Wilson’s, or that the Republicans of today are the same as T.R.’s time. For the record, I see that as a (qualified) good thing on both counts: I don’t like Wilson or TR.Report

              • Tom Van Dyke in reply to wardsmith says:

                True, Pierre. Yet the Thurmond/Dixiecrat calumny persists. Go figure.


              • BlaiseP in reply to wardsmith says:

                Calumny? Are you trying to deny the existence of Lee Atwater and Karl Rove and every other Dog Whistler to come down the pike into present times?Report

              • Tom Van Dyke in reply to wardsmith says:

                The calumny continues. And Franklin was speaking of wine, not beer.Report

              • BlaiseP in reply to wardsmith says:

                Well, the rain which falls on the vines falls also upon the barley and upon the just and the unjust, as Our Lord once observed. Maybe Franklin never said it.

                But I do recall Richard Nixon had a few choice words for history:

                “You know what happened to the Greeks? Homosexuality destroyed them. Sure, Aristotle was a homo, we all know that, so was Socrates. […] Do you know what happened to the Romans? The last six Roman emperors were fags. […] You know what happened to the popes? It’s all right that popes were laying the nuns. That’s been going on for years—centuries.”

                That’s our man, fine exemplar of what the GOP always thought. At least Nixon was man enough to say it out loud.Report

              • Tom Van Dyke in reply to wardsmith says:

                That’s a good technique, and I’m sure some people fall for it. If anyone’s interested, the quote is


                ”We hear of the conversion of water into wine at the marriage in Cana, as of a miracle. But this conversion is, through the goodness of God, made every day before our eyes. Behold the rain which descends from heaven upon our vineyards, and which incorporates itself with the grapes to be changed into wine; a constant proof that God loves us, and loves to see us happy!”

                As for the rest of your emission, you remain the league champion at conversation-ending, sir. Although you’ve recently picked up a rival.


              • BlaiseP in reply to wardsmith says:

                Nixon really is a show-stopper, isn’t he?Report

              • Bad-ass Motherfisher in reply to wardsmith says:

                And how many days did they last?

                Filibusters used to be a tool that was exceedingly rarely, and only on issues of extraordinary depth of feeling. And they generally lasted a few days, and led to some negotiated compromise that both parties could live with.

                In the current regime, filibusters are used frequently, and for the express purpose of blocking legislation. Only rarely is a negotiated compromise arrived at, because the filibustering party is using them as a strategic, rather than tactical, weapon, and the filibustering party seeks only to cripple the opposition in the pursuit of the mainline agenda.

                As Mike says, apples and oranges.Report

            • James B Franks in reply to wardsmith says:

              “Asked what that “job” was, McConnell explained that “the single most important thing we want to achieve is for President Obama to be a one-term president.”
              If you search on that you will get a lot of hits. Here is the link from the LA Times. http://articles.latimes.com/2010/oct/27/news/la-pn-obama-mcconnell-20101027Report

              • wardsmith in reply to James B Franks says:

                “Ending the Obama administration’s liberal agenda as soon as possible is Sen. McConnell’s top political priority,” said Don Stewart. “Americans have been speaking out, they want us to stand up for them and fight the wasteful Washington spending, stop the massive growth of the debt, create a better environment for job growth and repeal and replace the health spending bill, and that’s Sen. McConnell’s focus for the next two years.”

                Now show me the part where they aren’t concerned about “the good of the country”.Report

              • James B Franks in reply to wardsmith says:

                If your top priority is defeating the president, everything else is secondary.Report

              • Stillwater in reply to James B Franks says:

                Exactly. And then the conservative says that defeating Obama is the most significant way to ensure the good of the country, acourse. But that reveals the grim truth in all this: that conservativism is defined by opposing Democrats, updated daily.Report

              • Kazzy in reply to Stillwater says:

                Comedy Central

                I HOPE THIS WORKS!Report

              • Kazzy in reply to Stillwater says:

                Nope. Tried to embed. Here’s a straight link.


              • BlaiseP in reply to wardsmith says:

                Mitch McConnell belongs in jail. He’s completely corrupt, a nasty little bagman, a petty thief and a Witchsmeller Poursuivant. Mitch McConnell is directly responsible for the creation and continuation of the Guantanamo Ministry of Love.Report

              • wardsmith in reply to BlaiseP says:

                Blaise I’d be happy to see McConnell in jail where he certainly belongs, and right next to him I’d love to see Harry Reid, where he also certainly belongs. In fact the easiest thing to do is just put a big padlock on the front door of the Congress and not let them out for 30 years or so. They could keep getting Jaybird backrubs, they just couldn’t pass any more laws, take any more bribes and boff any more interns.Report

              • BlaiseP in reply to wardsmith says:

                Oh, from your mouth to God’s ear. Harry Reid is as crooked as a dog’s hind leg. An odious little man. May Satan smite his nether parts with boils for having bridges built to increase the value of his own land.Report

        • I actually don’t think it’s brilliant, which is very much my point. To the contrary, I think it’s too clever by half and runs an unacceptable, albeit relatively small, risk of getting overturned by a district judge before the election.

          In terms of the precedent this sets, it doesn’t really set much of any precedent – discretion in setting enforcement priorities is well and clearly established and is something that the Executive has little choice but to engage in. It is, after all, impossible to enforce every law uniformly, especially given the size of the regulatory state. Frankly, in at least announcing what its enforcement priorities are, this is on the actually a good precedent from the standpoint of concern about Executive power. Usually, the pressures for setting priorities are a lot less out in the open and less capable of forming a basis for reliance.

          Think here of the Bush Administration DOJ’s complete shift in priorities in terms of which voting rights allegations it would and would not investigate, or its insistence on prosecuting vice crimes while severely (and just as formally as this) restricting the situations in which the DOJ would pursue anti-trust cases. See, e.g., http://www.nytimes.com/2009/05/11/business/11antitrust.html

          All of this, by the way, was well within the Bush Administration’s rights, whatever my thoughts on the merits of these decisions. They are decisions that every administration inherently has to make and there’s really no way around it unless Congress steps up and severely narrows the scope of government agencies.

          Where this would create a dangerous precedent if the allegations about it were true is if this directive asserted the authority to automatically grant permanent work permits to individuals meeting the criteria. But that’s not what this does or even purports to do – all it does is say that aliens meeting the criteria have the right to apply for temporary work permits, which is a right that all aliens with pending deportation proceedings already have.Report

  2. Chris says:

    What Obama is doing is unprecendented. No one has ever done this. This is the worst thing ever!

    There, now that we’ve gotten that out of the way, at least 3 people don’t even need to comment in this thread.Report

  3. Ryan Noonan says:

    The sheer amount of unhinged conservative crybabying on the League alone means Obama’s instincts were probably exactly right on this.Report

    • Stillwater in reply to Ryan Noonan says:

      From The Hill:

      Obama’s decision, which some Republican strategists were describing as a deft political move, highlights the dilemma facing Republican leaders, including presumptive GOP presidential nominee Mitt Romney.

      What is that dilemma, you might ask?

      Republicans are seeking ways to appeal to Latino voters ahead of November, but want to avoid alienating conservatives who think all illegal immigrants have broken the law and should be deported.

      See, if you just file down the corners a bit, you can circle a square in no time.Report

    • I have little doubt that his political, or at least his electoral, instincts are correct. My objection is that the political benefits of any given action are highly marginal, but the potential legal impact of achieving it in this particular manner is sizable.

      If Napolitano issues the statement I suggested above, is there much of an electoral difference? I don’t think so – if anything, conservatives wind up marginally less pissed off, though Romney is perhaps very marginally less pigeonholed. Is there a substantive policy difference? Absolutely not – if anything, my proposed statement is actually more immigrant-friendly because it doesn’t look to create a potentially byzantine procedure for determining whether the deferral should apply. Is there a difference in terms of likelihood to be overturned by a court, though? Absolutely.

      As one who passionately supports the policy implications of what this directive seeks to do, that bothers me quite a bit. In my view, this Administration has too-often chopped its lawyers’ ability to do their job at the knees in order to make a marginal political point.Report

      • Ryan Noonan in reply to Mark Thompson says:

        Oh, of course. And given what SCOTUS is about to do to the central achievement of his presidency, you couldn’t have picked a more timely occasion on which to make this point.Report

      • Bad-ass Motherfisher in reply to Mark Thompson says:

        The electoral benefits are huge.

        Before this executive order (or whatever), Obama was doing more deportations than any other president in history. That was a vulnerability that Romney would surely have exploited: zillions of ads or Univision talking up Obama’s hostility to latinos. Now, that’s been pre-empted.

        Whatever you may think about the legal or ethical merits of the action, I suspect that it may have just won him the election in November.Report

        • I tend to think the electoral gold (whatever there is) comes not so much from what Obama gets so much as what Romney loses.

          It puts in the spotlight on a position that I believe he never wanted to take in order to win the primaries, and now he’s stuck between saying “me too!” to any variation of the Dream Act and potentially alienating (somewhat) the base that already has doubts about him, or alienating (much more) the independents and moderate conservatives he needs for the general.Report

    • Simon K in reply to Ryan Noonan says:

      The electoral politics is pretty obvious, right? Right wing gets irrationally upset over what’s really a tiny regulatory change with few consequences (its not like ICE has much time for hunting down teenagers with fake green cards), Romney’s unerring sense of hypocrisy causes him to announce that he’ll overturn it, hence winning votes he would have gotten anyway, Latino voters show up in larger numbers to vote for Obama.Report

  4. Jaybird says:

    My complaints about this is that while it makes it easier for some immigrants to get here, it doesn’t really help more immigrants from overseas come here… and as great as immigrants from Mexico and Central and South America are, I’d like to balance them out with Chinese, Indian, Japanese, Russian, Pakistani, Persian, Kurdish, Turkish, French, Spanish, Italian, Greek, Danish, British, Scottish, North African, West African, East African, South African, and Australian immigrants in equal numbers.

    Not Irish, though. We’ve got quite enough of them.Report

  5. Burt Likko says:

    Mark, thank you for this much more detailed and better-researched follow-up to my initial post.

    I continue to think that the political calculations on the polarizing dimensions of this maneuver run a substantial risk of backfiring on President Obama’s re-election effort despite a short-term surge in polling amongst Latino voters. I’m now thinking that Romney need not address it directly, since the moatdigger types will do so for him amongst themselves. All Romney really needs to do is not disavow the moatdiggers too loudly when they offer over-the-line rhetoric, and he can vacuum up the outrage fallout, nearly by default.Report

    • Scott Fields in reply to Burt Likko says:

      Not disavowing the moatdiggers will not be enough. They want to be affirmed.Report

    • Thanks! I’m not sure about the political implications backfiring on him – generally speaking, his political shop surely has a better idea of the polling on this than I do, and of the strength of opinion that is solely attributable to this issue on both the Left and the Right. On the other hand, whatever the political implications are, I’m too much a believer in the power of external factors to think that its electoral effect will be more than a net of a few thousand votes one way or another, and not enough in any one state to even come close to flipping any states.Report

    • Morat20 in reply to Burt Likko says:

      When has Romney ever actually disavowed the right?

      If it was Santorum, maybe, but Romney has a base that’s not entirely convinced of his bona fides — just better a RINO than the Kenyan Socialist Usurper.

      Except too much of a RINO makes people stay home. Romney’s having to kow-tow to his base an awful lot, and I can’t see him getting a pass on immigration.

      Heck, Bush couldn’t get one and at the time he was Republican Jesus.Report

  6. Koz says:

    Mark, I have a question for you about this whole episode, maybe you addressed this in the OP but tbh I’m not completely following all of it.

    I get that President Obama can decline to prosecute some class of illegal immigrants as an exercise of prosecutorial discretion (or at least make a plausible argument to that end), but I don’t get how he can issue work permits for them, or anything similar that gives the beneficiaries of the President’s action the legal right to work in America.

    The categories of visas and what they’re good for are statutory anyway I assume. There’s got to be some boilerplate statute somewhere that unless you have the right kind of visa or green card, then you can’t work here. If that’s a criminal act on the part of the alien or his employer the President could exercise discretion in declining to prosecute that as well.

    But the eligibility for work authorizations / visas, etc. are statutory and whether or not it’s unconstitutional, at the very least it’s contrary to statute if the President tries to waive those eligbility requirements. Ie, I’m not getting is how illegal aliens can get a job with any employer who does any kind of work authorization verification that he couldn’t get before.Report

    • Mark Thompson in reply to Koz says:

      But the eligibility for work authorizations / visas, etc. are statutory and whether or not it’s unconstitutional, at the very least it’s contrary to statute if the President tries to waive those eligbility requirements. Ie, I’m not getting is how illegal aliens can get a job with any employer who does any kind of work authorization verification that he couldn’t get before.

      This is incorrect for several reasons. First, it must be noted that the directive at issue here only says that an immigrant whose deportation proceedings are deferred may apply for a work permit – it does not say that deferral automatically renders the immigrant eligible for a work permit. Second, as I mentioned in the OP, the rule stating that having a pending deferred deportation proceeding may be a basis for a work permit has been on the books for a very long time, and this directive does nothing to alter that fact. Importantly, the decision to defer does not change an immigrant’s right to obtain a work permit under this rule – it’s effectively just a rule authorizing work permits while deportation proceedings are pending and unresolved. There’s a very good reason for this, too – if it turns out the immigrant is not eligible for deportation for one reason or another, you don’t want to have deprived him of a job in the interim.

      Of course, the next question is going to be where does the Executive get off making that rule in the first place, regardless of who made it? The answer to that is that it’s specifically authorized in the Immigration and Nationality Act. I don’t know if this is the only section that provides this authority, though it is surely a section that provides the necessary authority, but 8 USC 1184(q) provides the authority for issuance of Employment Authorization Documents. Under 1184(q)(3):

      “The status of an alien physically present in the United States may be adjusted by the Attorney General, in the discretion of the Attorney General and under such regulations as the Attorney General may prescribe, to that of a [nonimmigrant eligible for an EAD], if the alien–
      (A) applies for such adjustment;
      (B) satisfies the requirements of such section; and
      (C) is eligible to be admitted to the United States, except in determining such admissibility, the grounds for inadmissibility specified in paragraphs (6)(A), (7), and (9)(B) of section 212(a) [8 USCS § 1182(a)] shall not apply.”

      Subsection (C) is the important subsection here because, if you follow the cross-references, it makes clear that for purposes of this particular exemption, whether the alien entered the US illegally may not be considered. An EAD under this section expires 30 days after any petition for a change in status or for a visa is denied.

      This provision is not a blanket provision that renders any immigrant undergoing deportation proceedings eligible for a permit – they’ve got to meet one or two other requirements as well. But by making clear that illegal entry is not a basis for a denial, it demonstrates that purportedly illegal entrants are at the very least eligible to apply. So far as I can tell, there are a number of similar provisions under 8 USC 1255 that apply to any immigrants from a given country – Haiti, Cuba, and Nicaragua, specifically; and I’ve noticed a few other, more limited provisions. There are a number of other provisions that make clear that the Executive’s authority to set criteria for visas and work permits is extremely broad, though I’m not at all certain the extent to which those provisions might be applicable here.

      Regardless, the point is that there are a goodly number of aliens for whom there is specific statutory authorization to grant work permits pending conclusion of deportation proceedings, regardless of the illegality of their entry. All last week’s directive does is recognize the longstanding rule that a pending deportation proceeding is a basis for the subject thereof to submit an application for a work permit. It doesn’t change any of the longstanding rules governing when that application may or must be granted, nor does it purport to do so.Report

      • Koz in reply to Mark Thompson says:

        Thanks Mark, that helps. Otoh, most illegal immigrants don’t have pending deportation proceedings, ie, they haven’t shown up on radar for the relevant enforcement bureaucracies. So for this to work they essentially have to turn themselves in to ICE or INS or whoever, so that they have unresolved deportation proceedings pending against them.

        As a practical matter, do you have any idea for the nuts and bolts of how these illegal aliens are supposed to get work authorization, or is the whole thing supposed to simply wink, nudge encourage employers to hire them without authorization (a prospect I for one am very dubious of).Report

        • Mark Thompson in reply to Koz says:

          Otoh, most illegal immigrants don’t have pending deportation proceedings, ie, they haven’t shown up on radar for the relevant enforcement bureaucracies. So for this to work they essentially have to turn themselves in to ICE or INS or whoever, so that they have unresolved deportation proceedings pending against them.

          That would be my general interpretation as to the practical effects of this. If they wanted a work permit, they’d either have to be the subject of deportation proceedings or become the subject of deportation proceedings and then granted a deferral of prosecution (keep in mind, this policy’s ability to prevent initial arrests of aliens who meet the criteria is going to be limited at best since the procedures are not something that can occur in a few seconds).

          As a practical matter, do you have any idea for the nuts and bolts of how these illegal aliens are supposed to get work authorization, or is the whole thing supposed to simply wink, nudge encourage employers to hire them without authorization (a prospect I for one am very dubious of).

          As a practical matter, I do not know the ins and outs of the procedure, but as the regs are written, one would basically submit the forms for a change of status and for an EAD once you’ve been caught (before then, an illegal alien would presumably not want to file these papers, since they’d virtually beg the feds to start proceedings against you for deportation)….and then wait, presumably for a few months. The form specifically for an EAD is Form I-765, which is only a page long.

          One last thing – I found the really broad grant of authority that I was looking for. It’s at 8 USC 1258, and reads: “The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under section 212(a)(9)(B)(i) (or whose inadmissibility under such section is waived under section 212(a)(9)(B)(v)).”

          There are a handful of exceptions to this, and there are some other limitations as well, but they’re not usually going to apply for our purposes.Report

          • MarkT, doesn’t

            “in the case of any alien lawfully admitted to the United States as a nonimmigrant”

            make 1258 inapplicable to non-lawful immigrants?

            [From what I gather, the statute was designed to extend or change the status of doctors who are training in the US, that sort of thing. Lawful nonimmigrants. A Pakistani cardiologist on my cricket team was put on the citizen track via something like this.]Report

            • Whoops – you’re correct. I missed that key phrase in that section. That doesn’t change the analysis of the other sections, obviously, which are really all that’s necessary to make the point that this policy doesn’t change anything. If I had more time, and more willingness to sift through the morass that is the INA, I expect I could find a number more.Report

              • MarkT, I’m looking at Serrano v. US and the sections related 10 §1258:

                To be eligible for adjustment of status under 8 U.S.C. § 1255(a), an alien must be “inspected and admitted or paroled into the United States.” Serrano contends that he does not have to meet
                § 1255(a)’s eligibility requirement because he was granted Temporary Protected Status under 8 U.S.C. § 1254a, and thus his application for adjustment of status
                was improperly denied. After review of the record and the benefit of oral argument, we conclude that the district court did not err in dismissing Serrano’s petition and complaint, and therefore affirm.


              • That case wouldn’t really be relevant since the issue there was a change to lpr status, not an application for a work permit. I should make clear two things, though:

                1. For the relevant work permit provisions that I’ve looked at so far, the existence of pending deportation proceedings or of a pending request for a status change (presumably, most people facing deportation proceedings are going to at least try to apply for a status change) is a necessary but insufficient basis for a work permit. The other necessary attendant circumstances for those applications vary quite a bit and are highly specific. If you’re trying to use shorthand for those provisions, you’d say that applications thereunder are premised on pending proceedings.

                2. The 1255 sections to which I referred may not technically be part of 1255- they’re country specific seemingly uncodified Public Laws that Lexis lists under 1255.Report

              • I’m not following, MarkT, esp re §1258. Sec of Homeland Security legalizes an illegal immigrant [or 800,000 of them]? And gives out almost a million Green Cards? Because she says so?

                Some statute permits ultimate latitude for the exec branch somewhere, by some interpretation, I’m sure. But I think we agree we haven’t found it yet. The §1258 doesn’t work, nor via its supporting clauses such as

                —To be eligible for adjustment of status under 8 U.S.C. § 1255(a), an alien must be “inspected and admitted or paroled into the United States.”

                Illegal aliens are illegal precisely because they were not “inspected and admitted or paroled into the United States.”

                That’s a reasonable if not authoritative definition of “illegal immigrant,” yes?Report

              • As I said, my citation to 1258 was incorrect, based on me missing two rather important words. Regarding 1255, my reference was to the country-specific Public Laws for Nicaragua, Ciba, and Haiti, not the codified portion of the statute. I’ll see if I can directly quote from those tomorrow, but they contained specific provisions authorizing work permits from those countries either seeking a status change or undergoing deportation proceedings (I can’t recall right now which). But as I indicate able, 1184(q) is very explicit that it applies to provide an avenue for a work permit even if the alien’s initial entry was illegal; in fact, for that program, the Secretary is outright forbidden from considering legality of entry.

                A few other provisions I’ve found that are pretty broad in the discretion they give are in 1182, specifically subsection (i), which grants really broad discretion to waive the prohibition on admissibility due to use of fraudulent documents based on “undue hardship.”. Decisions to grant waivers under that subsection are also unreviewable. A similarly broad waiver provision exists for those just unlawfully present under 1182(a)(9)(B)(v).

                Then comes the real biggie: subsection (d). (d)(3) provides that an alien “(ii) who is inadmissible under subsection (a) of this section (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.”

                Then (d)(5)(A):
                “The Attorney General may, except as provided in subparagraph (B) or in section 1184 (f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.”

                These last two provisions are especially unequivocal in providing broad discretion for temporary admission of aliens, regardless of whether they entered illegally.

                And for what it’s worth, nothing gives you a feel for how convoluted and complex our immigration laws are than trying to actually read them; and that’s before you even get to the regs, which I assume are even more convoluted.Report

              • Tom Van Dyke in reply to Tom Van Dyke says:

                No doubt you can squeeze a million people through a loophole somewhere, Mark. My argument is that at some point you can make the spirit of the law a joke by exploiting the letter of the law, and this is it.Report

              • What is exploiting the letter of the law? The decades-old reg that expressly says that the existence of a deferred deportation is a permissible basis for an alien to file a work permit application, though it may or may not be a basis for that application to be granted? Or the directive last week acknowledging it?

                Moreover, the statutory language I quoted, particularly from 1182(d)(3) , makes abundantly clear that the “spirit” of the law for permitting temporary admission, even where the alien is here illegally, is extremely liberal, and bends over backwards to punt the question to the Executive. The other statutes I cite and/or quote further show that there are a number of occasions where Congress has expressly directed that a pending proceeding should result in a work permit being issued while that proceeding is pending.

                It’s all frankly pretty common sense, to be honest. If someone has proceedings pending that may or may not result in their deportation, and that may or may not result in a finding that the alleged alien is here illegally, your options are either a) give them a work permit; b) make them a ward of the state and give them welfare benefits; c) let them starve; or d) deport them before proceedings have concluded. D is pretty clearly illegal and unconstituional- you can’t just deport someone without first finding that they need to be deported. C is probably the worst of all worlds. I assume there’s not much support for the idea that the result of a pending deportation proceeding or an application for a status change should be that the alien sits around and collects welfare. So that pretty much leaves “let them work.”.Report

              • Tom Van Dyke in reply to Tom Van Dyke says:

                800,000 people, Mark? C’mon, dude. “Extremely liberal” doesn’t even begin to cover it. Why bother to have the laws in the first place?

                As for 1182(d)(3), litigating this serves no purpose. The section speaks of admitting such an alien as a nonimmigrant. The section is clearly designed for individual cases, not multitudes, they are already here so we’re not “admitting” them, and they’re going nowhere, which makes ’em immigrants. I don’t expect this to go to the courts, but I think stretching these loopholes and bending the language to include 800,000 people is—as charitably put as possible—an abuse of discretion.Report

              • She’s not suddenly issuing 800,000 work permits, though. That 800,000 number seems to assume that every single person meeting the criteria would become subject to deportation proceedings within the next two years. This, of course, is not remotely what would happen in actuality. Only a fraction of those individuals would actually become subject to deportation proceedings during that time period.

                Nor does this directive give those persons who do or would become subject to deportation proceedings work permits. It simply indicates that they have a right to apply for work permits, which is a right they would have regardless of the directive. Those applications then are subject to being ruled on a case by case basis- just as has always been the case,Report

  7. M.A. says:

    Quick Copypaste:

    8 CFR 274a.12(a)(10)(technically speaking, all of 274a.12(a) could apply, but subsection 10 is the most clearly relevant).

    That rule states that:

    “Any alien who is within a class of aliens described in paragraphs….(a)(10)… of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien’s authorization to work in the United States….”

    Eligibility under section (a)(10) is allowed for any “alien granted withholding of deportation or removal for the period of time in that status, as evidenced by an employment authorization document issued by the Service.”Report