Immigration/Executive Action/Imperial Presidency/End of the Republic Open Thread

Avatar

Michael Drew

Michael Drew is a Wisconsinite currently residing in Saint Paul, Minnesota. He enjoys thinking and writing about politics, history, and philosophy, listening to music and podcasts of all kinds, watching and occasionally playing sports, and playing the cello.

Related Post Roulette

113 Responses

  1. Avatar Jacob says:

    on the one hand that this is an action that is … clearly legal,

    and on the other that it … continues the expansion of the president’s role in making policy Congress is empowered to make.

    How are those not mutually exclusive again?

    While I agree with you that Congress has been remiss in failing to push back against constant executive overreach during the last two to three decades, I hardly think the appropriate solution is for the legislative branch to acquiesce and codify that which the President has unlawfully decreed.Report

    • Avatar Michael Drew says:

      Congress has vast powers to make law and policy. Lots of them overlap on top of substantive things that the president could also do on his own. So… Congress could write into immigration law, or say via appropriations, that the president should focus deportation resources on removing undocumented immigrants who have committed crimes, but the president can also make that resource utilization decision on his own as the head of the executive branch, which is faced with resource constraints and has to make many prioritization decisions all the time.Report

      • Avatar Jacob says:

        There is a qualitative difference between saying

        “our priorities are deporting nonresident aliens who have committed felonies or certain specified misdemeanors”,

        which would be a rational exercise of prosecutorial discretion, and saying

        “our priorities are deporting nonresident aliens who have committed felonies or certain specified misdemeanors. moreover, certain arbitrarily selected categories nonresident aliens who have not committed felonies or certain specified misdemeanors are now eligible to file for an I-766, notwithstanding the fact that they do not fall within any of the categories specified by Congress for work permit eligibility”,

        which is what the President said. The former is choosing where to spend scarce resources within the framework of established statute. The latter is choosing to ignore established statute and do what you want.Report

      • Avatar Michael Drew says:

        Deferred action granting temporary legal status, including documents allowing work, to undocumented immigrants is a long-established executive discretionary prerogative. Congress has occasionally acted subsequently to legislatively support certain categories of persons the executive branch has through its discretion granted deferred action to, but the pattern has been that those categories were established by the executive, then recognized by Congress. There is little history or Congressional or judicial resistance to the exercise of this discretion.

        Check out the OLC opinion supporting Obama’s actions. The problem here really is only that it extends the general pattern of the expansion of the president’s areas of responsibility for substantive policymaking, allowing Congress to further abdicate theirs, not that this action is illegal.Report

      • Avatar James Hanley says:

        Check out the OLC opinion supporting Obama’s actions.

        I haven’t had time to dig into the details of what the Prez proposed, so
        I don’t want to say too much. But let’s bear in mind that OLC works for the Exec branch, and so is not a disinterested party. It’s the same office that provided some support for John Yoo’s torture memos.Report

      • Avatar James Hanley says:

        That comment was incomplete. I’m not disagreeing with Michael that you shoukd read the OLC opinion. It’s the Executive branch’s best argument for the President’s action, so it should be read. It should just be seen as their legal argument, rather than objective legal truth (not that Michael was necessarily arguing the latter).Report

      • Avatar Michael Drew says:

        James, absolutely. I don’t mean to say their argument is authoritative that it’s legal because of who they are. More skepticism probably attaches to their arguments than any other ostensibly impartial analyst. It’s just that their opinion is where I became familiar with this history of not just prioritizing deportation efforts, but affirmatively granting temporary relief to include papers allowing work based on executive discretion. It does sound like that history is fairly objectively there in the record. To me, that is enough to establish that Jakob’s argument that the issuing of these documents outside of categories established by Congress is what make the action illegal doesn’t hold up. It would still need to depend in some way on the context differing from those past actions.

        I did say ‘check out the OLC opinion…” followed by “it’s not illegal” as if it follows, and I figured that people would probably think I might be thinking that what they say is somehow authoritative, so thanks for bringing it up. I meant for him to check out the opinion because they address the point he was making… but then I meant the “it’s not illegal” that to be my considered opinion at this time based on everything I’ve read, not just the OLC opinion.Report

      • Avatar Michael Drew says:

        Sorry: Jacob, not Jakob. Sorry, Jacob.Report

    • Jacob,

      On the one hand, you say the president’s action is “clearly legal,” and then at the end of your comment, you say it’s “unlawful.” What exactly do you mean, that it’s technically legal but in the broader constitutional scheme goes beyond the president’s legitimate authority?Report

  2. Avatar zic says:

    Thank you for this thread, Michael.

    There’s this; I found via Jonathan Bernstein. (And if you don’t read Bernstein, you should.) It’s Aaron Blake in the WaPo, Republicans are Cool with Compromise, Just not with President Obama.

    We’ve come to the end-game of negative-space politics. Anything Obama, our elected president, tries to do will be received in the negative space; if it’s your cause, and you want to get anything accomplished, his blessing is, apparently, the kiss of the spider woman. It’s more important to govern as not-Obama than to govern. Not compromising to resolve the plight of many millions of people in our borders, who now constitute a permanent underclass, matters less than Not Obama. He’s the kiss of death.

    I sorta wish I thought he had some thug in him; it would be nice to be surprised. I’d probably get arrested if I sent him cans of spray paint to help inspire him to action. But right about now, the capital could use a little graffiti.Report

    • Avatar zic says:

      And the House finally filed it’s ACA lawsuit against Obama.

      Happy times. Lots of horse race for the entertainment-distraction industry to churn out.Report

    • Avatar Doctor Jay says:

      Addressing the politics, as opposed to the policy, I see this as part of a number of things that Obama has done to activate wedge issues among Republicans, and to bring out their nastier, more racially charged, elements. The Sotomayor nomination was an early one of these.

      Honestly, it looks as though he trolls them, gets them to say dumb things that are really easy to knock down, and makes them look really unappealing to Hispanic voters (who, being primarily Catholic and pro-life, might otherwise find a home with the R’s).

      This might be “negative-space” politics, as you call it. But it’s also brilliant, in my opinion.Report

  3. Avatar Will Truman says:

    A few observations:

    1) Matthew Yglesias argues that Republican refusal to negotiate with the president leads to worse outcomes for conservatives, and thinks this is an example of that. I disagree pretty strongly. I actually believe that if the GOP had proposed this as law, Democrats would have objected that it was not enough because it didn’t include any sort of pathway to citizenship. From a conservative perspective, this could be a lot worse than it is, and it’s not as bad as it could be in good part because the GOP refused to go along.

    2) I think under different circumstances your “breathing room” argument might be true, but I don’t think it’s true here. The pro-immigration contingent of the GOP needs cover. This doesn’t give it to them, it takes it away. Either you’re steadfast against any (benign) action on immigration, or you stand with the President on it. I think the conventional wisdom is right here.

    3) While I’m not convinced it’s illegal, I think it’s stretching the powers of the president (most specifically, the work permits). I find the comparisons to Reagan and Bush41 lacking.

    4) As far as the merits of the plan goes, I’m personally in “wait and see” mode. I have no problem with it, assuming that we don’t see another huge push from the south that we can attribute to this.Report

    • Avatar Michael Drew says:

      1) I agree this isn’t so bad for conservatives, in part because I think it defuses immigration as an issue a bit for Democrats for maybe one cycle. But it’s not any kind of final outcome; i.e. they didn’t actually avoid anything worse by allowing this to happen. The same pressure for a comprehensive bill will build back up quite quickly, causing whatever pain this action causes them to eventually just be additive. Like pulling a bandage off a little before pulling it all the way off, the first little tug doesn’t make the big pull less painful, it;s just its own little moment of pain.

      But 2) everyone knows that pro-immigration Republicans stood with Obama on the issue. He’s been loudly demanding to please sign their bill for years! I don;t think this is a major help to prospects (not obviously the major obstacle); I just think that it;s possible that the passing something might be a little better when part of it can be said to be more reacting to the box the president’s placed them in than advancing normalization of undocumented immigrants all on their own initiative. Also, I think the optics of passing something might be a little better for people with anti-immigrant constituencies when there are fewer crowds of ethnic minorities with accents demanding Action Now!Report

      • Avatar Will Truman says:

        You need more Republicans to be willing to take that particular stand, than are presently willing to do so. In order to get them to do so, the toxicity surrounding the issue needs to be as low as possible. This hurts on that front. A lot. This is going to make it take a lot longer to pass.

        I am actually sympathetic to the argument that, ultimately, it doesn’t make a difference because the pro-immigration contingent was never going to be able to herd enough cats to make it happen. Effectively, the chances were 0% before and 0% after. That may be true. And from that standpoint (as well as others), this may have been a really great move for Obama, politically.

        But actually increasing the chances of a bipartisan compromise? Even past this next congress and into the next Clinton administration? Very unlikely. (That could change, somewhat, in the event that the next president is a Republican – though that would change the calculus with or without this.)Report

      • Avatar Michael Drew says:

        Well, I agree it was 0% before. So now, if it happens at all, it must be that I was right! 😉Report

      • Avatar Morat20 says:

        So in short, Obama needs to not do anything — despite being legally able to — something that’s important to his party and the people that vote for him, because if he does nothing at all, then maybe one day the Republicans will? Something that maybe, if we squint really hard and ignore all the screaming from the fever swamp, might be slightly better on the issue than Obama can do alone? After two years of waiting for the GOP-led House to vote on a bill that’s been waiting for them?

        I can’t wait until the next budget fight. Maybe Obama can resign, freeing up the GOP to pretend to be adults long enough to pass a budget.Report

      • Avatar North says:

        I think it mainly is a question of what the GOP does in response that will dictate how it turns out politically. If they do nothing it’ll be mostly a wash but there are a lot of potential somethings they could do that could hurt their party really bad both short term and long term.Report

      • Avatar Will Truman says:

        How the GOP responds seems already determined. Even if it were absolutely the right thing to do, this has dealt a huge blow to the pro-immigration caucus of the GOP.

        Cynically, that might have been part of the point.Report

      • Avatar Michael Drew says:

        If it’s truly as much in their interest politically as people seem to think, the effect of this “blow” will dissipate rather quickly. Everything seems big the week it happens; two weeks later it’s part of the past. It will remain the case in the new Congress that bills will be able to be passed if leadership will simply bring them to the floor for up or down votes. If the imperative is really so strongly to act, eventually they will. If that’s not the case despite a seemingly strong consensus among analysts that it is, they won’t, but then in that case they never would have.Report

      • Avatar Will Truman says:

        Nobody knows whether it’s an imperative or not. It won’t be decided on the basis of what people don’t know.Report

      • Avatar Michael Drew says:

        They’ll know. They seemed to know before; every Republican consultant you could ask would say it was an absolute must-do for the party’s ability to compete going forward. Leading Republicans seemed to be starting to sense this, though maybe they were just listening to the consultants. But if the consultants were right that it was true, this order won’t change that. It will remain true, just pushed back a short period of time. If it’s an imperative, it will reassert itself, and the imperative will again be felt. It’s not a question of whether they know it’s an imperative, it’s a question it’s felt as an imperative. But if it’s a competitive imperative, over (not too much) time, it will be felt as such again, and eventually, and not after too long, they’ll act.

        If, on the other hand, it was not an imperative but some kind of gimmick or miscalculation among Republican strategists, then they will not act, because clearly the inclination against is so strong as to make it something they have to be forced to do.Report

      • Avatar Will Truman says:

        How will they know? It’s not a scientific hypothesis that can be tested. They do it and remain viable, they do it and are not viable, they don’t do it and remain viable, or they don’t do it and are not viable. One of those four things is going to happen, and there are no do-overs. Proponents and opponents of CIR are both guessing, each with their own sets of facts. The question is how many people they can convince that they are right.

        The leadership and mainstream Republicans have always been sympathetic to immigration reform. Not just (I’d argue not even primarily) on the basis of electoral viability, but because that’s how they see things (also, intraparty allegiances and animosities). Their job has gotten harder, and one of the leading commentators for immigration has just turned on the issue, after decades of being a leading advocate.

        Best case, this has no effect past the short term (which is not far from the position you’re taking in this subthread). But the GOP response that North alludes to? We’ve already seen it. It’s not what Jeb Bush wants. I’m not confident that it will pass easily. The pro-immigration side lost one of their most strident activists this week, who’d been carrying the banner since we were kids.Report

      • Avatar Mike Schilling says:

        The pro-immigration side lost one of their most strident activists this week, who’d been carrying the banner since we were kids.

        Who?Report

      • Avatar Michael Drew says:

        Well, what were the strategists looking at that led them to the conclusion it was necessary, even while at the moment everyone acknowledges the party remains viable? If they were looking at a real thing, my view is that this action won’t forestall the pressure that real thing exerts very long, and you’ll hear the strategists making the same arguments in the same urgent tones, and you’ll see leadership moving toward heeding them again as they clearly were (moving toward doesn’t mean they were going to get their act together in any kind of timely way) before it was made clear there would be major executive action. They’ll know the same way they seemed to know before the action. If it wasn’t a real thing and it doesn’t come back, then they won’t act that way, but I was always presenting my point as based on that conditional. But I also think if there wasn’t really an electoral imperative before, they wouldn’t have eventually been forced to do it, because the imperative would have had to become clearer and stronger over time in order to overcome native resistance. And if there was such an imperative, there still will be now, and they still will be forced to act, eventually, not after too long. I.e., politically this was a delaying action, nothing more, nothing less, while policy-wise, if there was never to be any comprehensive legislation, it was a significant gain, while if comprehensive reform remains a possibility, this is an advance on one part of it.

        (And lesser, piece-by-piece legislation very easily could have amounted to trading a decent likelihood for comprehensive reform in the medium-term for possibly only enforcement-focused legislation in the immediate-term, and the surrender of any hope for eventual more sweeping reform.)Report

      • Avatar Will Truman says:

        The strategists were making an argument. Immigration opponents make a counter-argument. The pro-side looks mostly at the data, sees the Hispanic vote as important, and looks to CIR as a way to improve their numbers – or minimize their losses – there. The anti-side looks at history, looks at different polling data, and argues that they can win without significant inroads with Hispanics or that there are better ways to reach out to Hispanic voters.

        It’s difficult to determine who is actually right. There’s no random controlled study.

        To make sure that we’re on the same wavelength in terms of the discussions parameters:

        We both agree that at least in light of this, there will be no CIR in the very short term (the next two years), though you would argue that CIR was never going to happen anyway (while I would argue that it was possible, but extremely unlikely).

        We both agree that this will, eventually, pass. Neither of us believe that people will be looking back on this in 2048.

        Where we disagree is how long it will take for this to blow over. I believe pretty strongly that this has set us back at least 5 years, and it will take things falling just in to place for things to start happening right after that (namely, a Republican winning the 2020 election) and it’s more likely going to take longer and is less likely to happen at all (though not just because of the Republicans). Things may coincide that things would happen – or not – at roughly the same place as in the timeline where this didn’t occur, but I think it’s more likely that it pushes it back and I think there is very, very little chance it moves things forward.

        What do your timelines look like?Report

      • Avatar Will Truman says:

        Mike, I was referring to Michael Barone, and “activist” was the wrong word to use. Should have said “commentator.”Report

      • Avatar Mike Schilling says:

        @will-truman

        Thanks. (I usually think of him as a douchebag, but pa-tay-to, po-tah-to.)Report

      • Avatar Michael Drew says:

        I expect it to pass within 6 years. I’m not saying I think this moves it up. I said I think once the emotions from this dissipate, and that’s what I think will happen sooner than you, there will be conditions that will be a bit more conducive to passage if it turns out that the data the strategists are looking at reflected a durable set of pressures in a growing part of the electorate. I think it still happens roughly when it would have. CIR clearly was not going to happen this term – the GOP would never have handed Obama that victory. They might have sent him an enforcement-only package – are you saying he should have held out for that? I don;t think the electoral benefits would even accrue in time to save the ’16 nominee, because the backlash inside the party would be so great that the primaries themselves would kill their chances. Further, the Dem nominee is going against history trying to win this year, so it makes all the sense to see if they can get an R in the WH, at which time the benefits of passing IR would be magnified, and they’d dictate the terms of it. If it’s Clinton, at least that’s someone they don;t hate as much at this point. And the presidential politics on the GOP side then will be at a starting-over place, such that someone should be able to coordinate their pitch around a “new GOP” brand that is friendlier to immigrants, more productive, etc. So it was not happening this term. Which means if it happens in the first Congress of HRC’s first term, that means it was not delayed significantly.

        But saying it will happen in the 3-6 year range also doesn’t mean it will have happened sooner than it would have. It might just be a little more painless, because it doesn’t have to happen under duress quite the way it would have had to happen this term if Obama had not followed through on his plan, with crowds marching on both the WH and the Captiol. (Obama having made it a real only plan because those crowds organized on their own in response to Congress’ failure on the issue and Obama’s solicitation of that failure.)Report

      • Avatar Michael Drew says:

        …And again on that first prediction, that’s with the same condition that’s been attached all long – if it turns out that the pressures that were starting to make the issue look urgent to GOP strategists turn out to be robust, and therefore reassert themselves rather quickly. Which I do think is more likely than not, but is quite plausibly not the case. So I think it is likely to happen within 6 years, but even more likely that it happens approximately whenever it would have anyway. And that’s possibly not for a very long time, because, as you say it’s 100% sure that this was a problem that was absolutely not going to go away without the GOP taking major action to alter how they are perceived on it as GOP strategists said. But it’s moe likely to be within 6 hers IMO.

        (Where we mainly differ I think is that I think that if this political problem was strong enough to eventually force action, it was going to become functionally knowable in the party that viability practically depended on action, such that dissenters would come to be seen as (politically) dangerous dead-enders. If it was not going to be that clearly threatening, then I think it was not likely to happen on any short or medium timeframe. I think you think that Obama’s action makes the dead-ender view more mainstream in the party, and I agree that it does. The crux of our disagreement is how long that state of high dudgeon lasts. If the numbers come back to look the way they did after the election, those feelings will dissipate quickly. They’ll naturally dissipate significantly just from the passage of time over the course of the next year, even.)Report

      • Avatar Michael Drew says:

        “as you say it’s 100% sure that this was a problem that was absolutely not going to go away without the GOP taking major action”

        …That’s, “…it’s not 100% sure…”Report

    • Avatar Michael Drew says:

      Will didn’t say he needed not to do this, @morat20 . He said he thinks it was at the edge of his authority and that it doesn’t make it more likely the GOP will pass something. And that he’s agnostic on the merits. If he thinks it’s not clearly needed on the merits and at the edge of his authority, being against it is pretty reasonable, and Will didn’t even say he is against it.Report

      • Avatar Morat20 says:

        It’s really not at the edge of his authority. He’s not the first President to do this, and even if there wasn’t explicit authorization (I’m pretty sure there is on this), the simple fact is the number of illegal immigrants is much, much larger than the number that can be deported each year with the budget authorized.

        If the budget can cover, oh, exporting 100,000 a year — what’s the difference between “the first 100,000 cases and then we stop for the year” versus any other given criteria?

        In any case, Reagan and Bush the Elder both did something quite similar, as did past Presidents. It’s certainly not at the limits of any historical use of this power.Report

      • Avatar Will Truman says:

        As I said, I find the comparisons worth Reagan and Bush41 lacking, because neither of them did what they did over the objections of Congress. It was more a procedural shortcut than a circumvention of an intransigent Congress.

        The lack of deportations is less dramatic to me than the formalization of their presence. The former is indeed a case of inaction.Report

      • Avatar Michael Drew says:

        I find that distinction less than compelling, in turn. It’s really hard to draw any lines about presidential authority when the basis for it is that Congress’ mood on the issue was roughly X rather than roughly Y. In all the cases, these are things Congress very much could have acted on, but for whatever reason the president concluded he couldn’t rely on them to and found it in his authority to do it. And I think essentially the same authority was used each time. To me, the best distinction to focus on is the scale of the action, but I’m not sure that gets us to where he’s at the edge of his authority. But it might.Report

      • Avatar Will Truman says:

        I meant to mention scale as well. It’s a combination of multiple things (scale, lack of congressional support, action/inaction, lack of public support) . No single item demonstrating it over the line, though, which it why I say “stretches” rather than “breaks.”

        I don’t expect the folks here to agree with me, just articulating where I am coming from.Report

      • Avatar Michael Cain says:

        …neither of them did what they did over the objections of Congress.

        Parts of Congress. There are consistent reports from various insiders that if Boehner had allowed the bipartisan Senate immigration reform bill to come to a vote, the House would have passed it. No vote’s a sure thing until it’s actually taken, of course, but it certainly appears that a majority in both chambers approved of a bill that would have satisfied the President. I’m not sure I would say “over the objections of Congress” when there’s an implicit “over the objections of a privileged minority in one chamber” in there.Report

      • Avatar Will Truman says:

        I believe that even those who would have voted for a law nonetheless oppose this being done by executive action. That’s what I mean by congressional objections.

        I actually rather believe that what Obama did here could have been passed, as far as the GOP is concerned (but would not have had the Democratic votes because there is no Path to Citizenship). I could be wrong about that, but that’s my read of the situation.Report

      • Avatar zic says:

        @will-truman because neither of them did what they did over the objections of Congress.; since GWB, there has been intransigence. That’s the problem. We’re talking about 13 million people. If we enforce the laws on the books, we literally tear families apart.

        There are children, US citizens, who’s parents are illegal. So it seems the question we ought to be asking is if those children have a right to their parents?Report

      • Avatar Will Truman says:

        Those are good arguments for passing a law, through congress.

        As recently as 2013, I would have been very much in favor of a law being passed that looks like what the president just did (the only question I was mulling over at the time was Pathway to Citizenship). Now I’m more sensitive to the messages we’re sending to people in other countries.

        And so I find myself conflicted between keeping families together and trying to control influx as best we can. If there’s not another rush after all is said and done here, I will be quite happy with the results of this.Report

      • Avatar Morat20 says:

        Correct me if I’m wrong but Congress can, in fact, change this by passing a bill? And the President has waited two years or so for them to do so?

        Your “over the objections of Congress” part is frankly immaterial. There are no Congressional objections. They have not passed a law preventing this (they certainly could have, and have had plenty of time to do so, and the contours of the President’s plan were well known). They have not passed a law dealing with this problem, and have had plenty of time to do so.

        Your objection seems to be “SOME Congressmen are really upset about this”. Well yes, but some Congressmen are always upset about something. Frankly, a good chunk of THIS Congress would be highly upset at anything the President does, except for resigning. And I think they’d critque the way he did that too.

        He has not vetoed a law — Congress has not passed one. He has not acted “over the objections of Congress” because Congress has passed no bills on this issue, despite having had two years of notice..

        I can assure you that Bush the Elder and Reagan’s executive actions undoubtedly had angry Congressmen. I fail to see a qualitative difference.Report

      • Avatar Will Truman says:

        I’d argue that when supporters are saying “He had to do this because congress refused to act” that’s acting, if not over the objections of congress, then without it’s agreement. IE this was not fast-tracking what congress was likely willing to do, which is my impression of previous instances. In any event, this wasn’t particularly what I was talking about.

        My reference to “over the objections of congress” was in reference to objections of congress doing what he’s doing. I suspect that if you polled congressmen, you wouldn’t have majority support in the incoming congress. I don’t believe this dynamic was in play in previous instances, in part because it was relatively shortly followed laws that congress had recently passed.

        What I’m seeing here is amended policy through both action and inaction. And I’m not seeing a whole lot in the way of mitigating circumstances. The primary rationale – that congress “refused to act” – actually hurts the case more than it helps it. (On a procedural level, not speaking to the merits.)

        Thus far, I find the arguments that this is not even a stretch lacking. Not that I have to because the president did it and I suspect it will not be reversed. Even so, I’m a “swing voter” on this issue and the Reagan/Bush comparisons don’t particularly convince me that this is comfortably in the realm in the realm of the executive.Report

      • Avatar Will Truman says:

        I should add, the “comfortably” does a lot of work in that last part. I’m not saying that it’s not legally permissable. I said in my first comment that I wasn’t saying that. My comment is more along the lines that this is either right at the limit or further than I prefer presidents to go in setting (non-emergency) policy, and that I don’t find the Reagan and Bush examples instructive in convincing me otherwise.Report

    • @will-truman

      I actually believe that if the GOP had proposed this as law, Democrats would have objected that it was not enough because it didn’t include any sort of pathway to citizenship.

      I don’t want to push back too hard, because I think what you say about the ultimate political effect of Obama’s action seems reasonable. But if Obama really is stretching his authority here–and I’m not sure he is because I’d need to know more about the nuts and bolts of the policy–he’d be stretching it even more with an executive decree to grant a pathway to citizenship.

      In other words, Obama is doing what he can, but only congress can create a path to citizenship. So a GOP law that did only what Obama’s executive decree* does might not go far enough (at least for someone with a certain pro-immigration stance).

      None of this, again, is meant to negate your political analysis as a whole.

      *As an aside, I get kind of nervous when a policy debate focuses on the executive’s “decree.” There’s something about that word that’s not very assuring. However, it seems like it’s becoming more and more like the proper word to use. That strikes me as unfortunate.Report

      • Avatar Will Truman says:

        @gabriel-conroy Granting citizenship is completely out the bounds of his authority. Which is why I think Yglesias is wrong that the GOP lost by not cooperating. By virtue of the limits of executive authority, less was probably done than would have been in a bipartisan bill.Report

  4. Avatar North says:

    I’m puzzled as to how the partisan heat could go much higher so that one always leaves me bemused.Report

  5. Avatar Michael Cain says:

    I’m looking forward to (for certain values of “forward to”) the early parts of 2015. Here in Colorado, the Republicans won a US Senate seat and retained a US House seat that I thought they would lose. My perception is that both of those candidates ran very much “I’m not that kind of Republican” campaigns. At least what I thought I was hearing was: revise, don’t repeal, the PPACA; reform immigration; don’t shut down the government; when my party is on the wrong side of those, I’ll vote no. Looks like I may get a chance to see fairly early whether they’re going to honor those.Report

  6. Avatar aaron david says:

    I kinda think the bell weather on this is Mary Landrieu. Depending on how she does next month, that could tell us how things will move forward.

    That said, most Americans ain’t exactly right there with him:
    http://www.washingtonpost.com/blogs/the-fix/wp/2014/11/20/understanding-how-americans-feel-about-immigration-in-7-easy-charts/Report

    • Avatar Morat20 says:

      She’s going to lose? That as pretty certain the day the election was over. Should we be looking to see if she double-loses?

      I suppose we could divine tea leaves, but using the results of a run-off election from a (even by mid-term standards) low turnout mid-term election strikes me as a pretty bad way to do anything but confirm whatever you wanted to believe anyways.Report

      • Avatar aaron david says:

        Well, that is all the tea leaves in the pot. Its not whether she wins or loses, but who comes out to vote on this, what numbers they vote and the margin of loss.Report

      • Avatar Morat20 says:

        Off year run-off election. Attempting to divine the future from that? You’d be better off throwing a dart at a board with potential outcomes on it.

        At least your answer would be truly random, rather than biased by whatever you wanted to see.Report

  7. Avatar Dand says:

    On immigration here a two charts

    This one shows the percent of residents who are born:

    http://www.cis.org/sites/cis.org/files/articles/2011/record-setting-2011-f1.jpg

    This one shows income inequality:

    http://rdwolff.com/sites/default/files/blog1.png

    The correlation is obvious, what’s the level of immigration in the 19th century correlates to estimates of income inequality then as well (low in the early 1800s rising sharply between 1820 and 1870 and plateauing after that). This doesn’t mean that immigration causes income inequality, I can think of a half dozen reasons why they might be correlated with one causing the other; but I still think people are two quick to dismiss the possibility that immigration has a negative effect on native born workers. And of course from a global perspective immigration is a net positive in terms of inequality.Report

  8. Avatar Kolohe says:

    What I don’t get is the ‘power of the purse’ meme that’s permeating talk radio and the conservoblogosphere. How can you take money away so that you’re not *not* deporting people? (and even more, if you shut down the government again?)Report

    • Avatar Will Truman says:

      Theoretically, the idea is to prevent money from going to the active parts, like the issuing of work permits and the like. Stipulating that agency appropriations do not go towards that.

      I don’t know enough about the budget process to know if that would work.Report

      • Avatar Michael Drew says:

        Doing it would depend on a shutdown or some other kind of “or else” that they don’t appear interested in leveraging (the leadership don’t; many members obviously do) regardless, wouldn’t it? Also, I heard something very vague on the radio today that the funding may flow in part from customs fees (or some other fees), so that appropriations are to some extent cut out. But I really don’t have the specs on that.Report

      • Avatar Will Truman says:

        I’ve read some arguments both ways, that it can or cannot be done. I honestly have found the latter more convincing, but I don’t know enough to have much confidence. It’s unlikely that we will find out, cause I don’t think the leadership has the fight in them.Report

      • Avatar Michael Cain says:

        My understanding is that there are basically no restrictions on what Congress can include in a “budget” bill, and all sorts of things do get attached at various points in the process for various reasons (to avoid the Senate filibuster, to avoid floor debate, etc). My attitude towards how far it’s appropriate to allow that sort of thing was changed by my three years on the Colorado legislature’s budget staff. Colorado is a newish state, where it’s easy to amend the constitution, and the budget process is much more constrained by rules added over the years. In particular, substantive legislation can’t be included in a budget bill. For example, Congress can limit eligibility for a particular benefit as part of a budget bill; the Colorado legislature would have to pass a separate bill to make that substantive change.

        These days I lean towards the Colorado approach, although I admit that there are other aspects of the Colorado process that are probably necessary to make that feasible.Report

      • Avatar Michael Drew says:

        @michael-cain

        In February 2011, the president produced a budget proposal and sent it to the new Republican Congress; it was obviously DOA. Similarly, the newly politically coordinated GOP Congress is likely to pass a budget next year and send it to Obama; Obama will veto it. The GOP budget will probably contain language forbidding expenditures on the immigration actions the president proposed this week, but, again that budget is going to get vetoed – for many more significant reasons than just that language by Obama’s lights.

        The government will then need money to operate via a continuing resolution, or it will have to slow down operations, which will be portrayed in the press as a shutdown. The Republicans have announced they will not shut down the government. The Republicans can then demand that Obama not use funds to do execute his orders on immigration (they can do that right now, in fact), but if they say they will not pass a CR if he does not, that is a shutdown threat. Perhaps they did not promise not to threaten a shutdown, but it will not be covered significantly differently. In any case, Obama will not yield to said threat. The funding of these immigration policies will continue.

        Perhaps the Republicans will then refuse to pass a CR and shut down the government after all, despite their guarantees it would not happen. My guess is that Obama would then pretty easily be able to include the small amount of funding these measures require in the spending the continues in the early stages of a government funding crisis. At some point we reach a point in the simulation where targeting these actions through appropriations is having effects past anything the GOP wants to allow. And do we even imagine them taking it as far as I spun it out just there (which wasn’t really that far)?

        So yes, the GOP absolutely can and will include a provision in their budget expressly disallowing this spending. It’s just that that budget was already going to get vetoed whether that provision is in it or not. Which means we’re back in continuing resolution/shutdown threat world. And the GOP has taken the shutdown threat off the table. They’d have to put it back on the table, get to a shut down, and then persist in it for quite some time – so long that they get the president to relent and say he won’t resume the spending when the government reopens! – before an appropriations fight leads to a change in this policy. That’s really a long way away right now.Report

      • Avatar Will Truman says:

        The “no shutdown” claims really did undermine their hand here. As did the shutdown in 2013. I’ve commented multiple times on Twitter that a shutdown over this would be more feasible if they hadn’t pulled one last year.Report

      • Avatar greginak says:

        A shutdown is “easier” and creates less intraparty dissonance then dealing with R’s internal discord over how to deal with our illegal immigration problem.Report

      • Avatar Stillwater says:

        I read on TPM that Ted Cruz is already accusing Obama of threatening a shutdown to get his way on stuff. And the logic makes some sense, actually: if A demonstrates that they’ll shut down gummint if they don’t get their way, expressing a difference of opinion clearly constitutes a “threat” to threat to shut ‘er down. QEDiness.Report

      • Avatar Will Truman says:

        If Congress passed budgets and CRs that were more of less in tact but with the stipulation that the money not be used to issue work permits, and the president refused to sign them, it’s not clear that the GOP would be causing the shutdown.

        That argument would be stronger if not for 2013.Report

      • Avatar Michael Cain says:

        @michael-drew
        I don’t disagree with anything that you say. I’m just saying that I would prefer to see Congress handle the federal budget more along the lines that the Colorado legislature uses. My biggest complaint, as a former budget staffer? Permanent appropriations. 65% of the current federal budget is permanently appropriated; another 6% is interest on the debt and might as well be permanently appropriated; another 16% is the military, and much of that counts as “emergency” items not subject to a shutdown; some amount of the final 13% is also “emergency”.

        In contrast, little of the Colorado budget is permanently appropriated, so failure to pass an annual budget has really serious consequences. The state budget is also all-or-nothing, none of this we’ll fund some departments but not others. Congress and the President would be a whole lot more likely to work out their differences if failure to pass a budget meant that the SS checks, state Medicaid reimbursements, and military paychecks all stopped.Report

      • Avatar Michael Drew says:

        Also if not for the announcement that there was no intention to shut down the government. Obama’s formal announcement came after McConnel’s comments to that effect after the election, but it was well-known that Obama was very seriously considering taking a step like this. In the midst of that clear understanding, an unequivocal announcement was made that the government would not be shut down. Failing to make a clear exemption in such a statement for an action like the president’s when it’s well-known that it is being considered is tantamount to a statement that it was not being asserted that a decision by the president to go ahead with those actions is tantamount to deciding to shut down the government. I.e., they didn’t even make the case when they had the chance. They can’t say, “We told you if you did this, we’d shut down the government, you did, do now that’s happening,” because they had their chance to say that, and elected not to. It’s, “We weren’t planning to shut down the government, but then he did that, and the response we’ve decided on is to shut it down.” That’s clearly their political response, not a choice they clearly gave to him ex ante that he took one side of in knowledge of the consequences.Report

      • Avatar Michael Drew says:

        @michael-cain

        I hear you. Just wanted to lay out the extreme nature of actually reaching this funding.

        Also, I just heard Dickerson of the Slate Gabfest be the second person I’ve heard say this money isn’t appropriated; that it comes from fees. That guy usually checks his facts, I think. So it sounds like my shutdown story regarding this action really might be moot anyway. (And hence our discussion about responsibility for any shutdown over this, Will.)Report

      • Avatar Michael Cain says:

        …the second person I’ve heard say this money isn’t appropriated; that it comes from fees.

        It doesn’t matter what the source of the revenue is: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”. Congress may pass a law saying that the fees collected can go into a special fund (which will still be managed by the Treasury), and that the contents of the fund are permanently appropriated to some agency for some purpose, but no one spends a dime sans some form of appropriation.Report

        • Avatar Michael Drew says:

          I trust you, but it doesn’t seem to be how it’s being reported. Probably the reporters just aren’t familiar enough with the options.

          In fairness, that would not be part of a “status-quo” appropriations bill in the sense Will describes; it would probably be an at least somewhat irregular diversion of funds from how they usually flow. So it would be clearly reaching out achieve the impasse over which things would be shut down (or not). I realize that portion of the argument is not so much what you’re speaking to, though, rather just how/whether it could happen.Report

      • Avatar zic says:

        @michael-cain this is true.

        And the standing appropriation is likely to be that the fees are used by the Department, no? To change that, Congress would have to pass such a law? A law that the president the president may or may not veto? And one that would not take effect for some time, if it is part of the normal budgeting process, because of how departmental budgeting works?

        What I’m getting at here is that both you and @michael-drew are probably correct here.Report

      • Avatar Michael Cain says:

        @michael-drew
        Yeah, only budget wonks care about the fine details. Especially the staff who are stuck with drafting the eff’ing bill.

        @zic
        Since it’s Congress, they can simply tack on a provision that says “These funds may not be spent for purpose X” without changing the appropriation amounts or mechanism. Myself, I would prefer that Congress not be able to put substantive legislation like that in an appropriations bill because, absent a line-item veto, it forces the President into a choice of “accept this (often small) policy change or scuttle the entire appropriation for Department Y.” Of course, the President can (usually) reverse that situation by vetoing the bill, forcing Congress to give up the policy change or scuttle the entire appropriation.

        If we’re going to allow Congress and the President to practice such brinksmanship, it’s probably reasonable that almost two-thirds of the budget is outside of the annual appropriations process. Although, as I noted above, if that two-thirds were included in the annual process, attempting such brinksmanship becomes politically very dangerous. Sen. Cruz of Texas is likely to have a quite different attitude if, with 30 days left in the fiscal year, he starts getting phone calls from the governor and every leader in the Texas legislature telling him that if he f**ks up the Medicaid funding, he’s unlikely to survive his next return trip to Texas.Report

    • Avatar James Hanley says:

      I don’t know if this is what anyone’s getting at, but Congress could pass legislation specifying just how ICE spends its budget and detailing how it must prioritize. Once upon a time that’s how they did things, down to telling the Forest Service precisely how much they could spend on horse feed.

      Of course since the law doesn’t seem to currently do that, any such change would be subject to presidential veto, and I wouldn’t expect any presudent–any administrator, really–to happily give up discretion.Report

    • Nob Akimoto Nob Akimoto says:

      I can sort of understand the power of the purse angle, but what I don’t get is the “civil disobedience” angle. How do you civil disobedience against a lack of enforcement rather than enforcement itself? It’s really hard to disobey when you STOP oppressing people, rather than when you START.Report

  9. Avatar Jaybird says:

    Well, so long as it happens close enough to the election to be able to look up everybody’s response to it.

    “Hey, how come you’re saying the new person can’t do this when you said that Obama could?”
    “Well, how come you’re saying that the new person can do this when you said that Obama couldn’t?”

    Fun fun fun.Report

  10. Avatar Mike Schilling says:

    People are saying that this action will raise the temperature of partisan fighting in Washington in the upcoming Congress, and it may do that.

    Are people really still saying that Obama shouldn’t do X because that would result in Republicans refusing to cooperate with him? The only value of X that works for is “breathe”.Report

  11. Avatar zic says:

    I asked above, embedded in a subthread, I’ll ask again:

    What rights to children (who are US citizens) have to their parents? I think this question is important; and not just when it comes to immigration, but the WOD, too.

    And when we deport illegals who have children who are US citizens, what happens? Do we also deport those citizens to a country where they are not citizens? Do we place them in foster care?

    There is nothing in the constitution that denies them the full rights of citizenship. So what are their rights to family?Report

    • Avatar Will Truman says:

      In all likelihood they are, or can relatively easily become, citizens of their parents’ homeland in addition to the United States.

      It could require that their American citizenship is renounced, though in cases where that is applicable it’s usually not required until they reach an age a majority and they can choose at that point.

      Also, even countries that don’t allow some dual citizenship make distinctions between voluntarily and involuntarily acquired citizenship with American birthrights falling in the latter category.

      I generally favor allowing parents of minors to stay, but there are multiple ways of approaching it. You could refuse to recognize renunciation in some circumstances, provide narrow relief for children who are not citizens by descent of their parents’ homeland, etc.

      I’m not sure how often these cases apply, though. I’m under the impression “not often”. Even so, it’s not a bad argument. Children Without a Country are among the reason I support birthright citizenship, and allowing “anchor babies” does strengthen the concept (I don’t know if the action extends beyond parents and siblings, though).Report

      • Avatar zic says:

        In all likelihood they are, or can relatively easily become, citizens of their parents’ homeland in addition to the United States.

        This is not justification for deporting US citizens, who happen to be minors, to other countries, however. I know nothing in US law that even begins to allow such a thing.Report

      • Avatar Will Truman says:

        They aren’t being deported; their parents are. They just often end up having to go as well to keep the families together. I think if they have another caregiver they can stay (or come back), or foster homes may be (should be) an option if that’s what the parents would prefer. As minors, though, they don’t enjoy the same rights as adults. As adults they can at least theoretically return. (I wish I had more faith in our ability to track paperwork, however.)

        The laws that allow for it are a combination of deportation and family law.Report

      • Avatar zic says:

        Also, @will-truman

        the order does two things (when it comes to children); increases the access for Dreamers, so children brought here illegally, who have broken no laws. But not their parents.

        Quoting http://www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigration-accountability-executive-action:

        Creating a mechanism that requires certain undocumented immigrants to pass a background check to make sure that they start paying their fair share in taxes. In order to promote public safety, DHS is establishing a new deferred action program for parents of U.S. Citizens or LPRs who are not enforcement priorities and have been in the country for more than 5 years. Individuals will have the opportunity to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees, and show that their child was born before the date of this announcement. By providing individuals with an opportunity to come out of the shadows and work legally, we will also help crack down on companies who hired undocumented workers, which undermines the wages of all workers, and ensure that individuals are playing by the rules and paying their fair share of taxes.

        So I’d suggest that this very thing — the rights of US citizens who happen to have illegal-immigrant parents — is at the heart of the order; not a secondary consideration.Report

      • Avatar Will Truman says:

        Oh, I agree that keeping families together is very much one of the main goals here. It’s definitely a selling point.

        I’m in “wait and see” mode. If this doesn’t create another border crisis, I’ll be quite happy with the outcome. For a variety of reasons.Report

      • Avatar zic says:

        Well, that’s some progress.

        Because these are real people, real US citizens (and their families). And not just a few, but millions of people.

        So the balance of presidential-overreach is Congress (particularly the House) abdicating it’s responsibility to millions of US citizens. They might want to ignore anchor babies; but that does not change the laws about who has rights to Citizenship. Now if Republicans want to get behind a constitutional amendment to do this very thing — only people born of US citizens or of legal-immigrants may qualify — that would be one thing. But short of such a change, those children’s rights are the heart of this. And Republicans have abdicated their responsibility and allowed this legal limbo.

        Personally, I think it’s something else that nobody wants to discuss; I think a good part of the illegal-immigrant labor force works for individuals; house cleaning, lawn work, construction, jobs where the ability to avoid all the reporting requirements of an ’employee’ are truly burdensome and meeting those requirements places the needed service out of middle-class (and overworked) families reach. But this is not, I think, an immigration problem so much as it’s a regulatory problem that fosters a large, invisible, and unprotected workforce.Report

      • Avatar Will Truman says:

        “Wait and see” has more or less, my position at the outset. I’ve not had much problem with content of the action, unless it generates problems.Report

      • Avatar Michael Drew says:

        They aren’t being deported; their parents are. They just often end up having to go as well to keep the families together.

        Is this really something you want to say, Will?Report

      • Avatar Will Truman says:

        As far as I know, it’s a statement of fact. The kids are allowed to stay so long as they have someone to stay with (or can go into foster care or state housing). They themselves are not legally being deported, which is a not-insignificant distinction when we’re taking about what the law allows.Report

      • Avatar Michael Drew says:

        Yes, it is a statement of fact.Report

    • Avatar Damon says:

      Good point Zic. What we need to do is change the law so that these kids, when born, aren’t citizens. 🙂Report

  12. A few observations, based only on having seen Obama’s speech and read a transcript of it (therefore, I have not read the actual policy or OLC report):

    1. A couple people here have mentioned “work permits,” but I don’t see where they’re getting that from Obama’s speech. Is it from a more detailed version of the policy that’s available? Is it from his “dream act by executive fiat” he issued a year or two ago?

    2. This is not necessarily a great deal for immigrants, although perhaps it’s better than the status quo ante. The “temporary regularization” (my words) would apply only after the undocumented person goes through a criminal background check. What type of offense would be disqualifying? An undocumented person is required to pay his/her “fair share” of back taxes. Do any taxes withheld from someone with, say, a fake ssn count toward that? Will they get a refund? (I can see an argument for why they shouldn’t….using a fake ssn not necessarily being something we’d want to encourage. But it’s not as if they wouldn’t’ve had taxes withheld.)

    3. One effect of this policy could be to create a set of clients–undocumented immigrants and documented family members–who have a very strong stake in one party holding the presidency over another. I’m not sure if that’s good or bad. It’s probably both.Report

    • Avatar zic says:

      3. One effect of this policy could be to create a set of clients–undocumented immigrants and documented family members–who have a very strong stake in one party holding the presidency over another. I’m not sure if that’s good or bad. It’s probably both.

      Documented =/= eligible to vote; so the political interests here are with smaller number of voters representing the interests of a much larger block of people.Report

      • I’d say it’s more like, “documented does not necessarily equal eligible to vote.” My understanding is that a lot of immigrant-heavy communities tend to have a large number of citizens and a large number of non-citizens, and the citizens’ interests sometimes track with those of non-citizens. (And sometimes not. I think one of the mistakes people make in talking about immigration reform is to assume, for example, that all Latinos, by virtue of being Latinos, necessarily support a more liberalized immigration policy.)

        Please don’t any of take this to mean, “ohmygawd, there’s a pro-immigrant faction a-forming!” It might sound like concern trolling, but I am sincerely concerned that one group of people will come to depend very heavily on one party being in power, and that’s not always a good thing for that group of people. At the same time, it might be the best in the short run that they can hope for.Report

      • Avatar zic says:

        Well, it’s not like they wouldn’t welcome some of their interests supported by the other group, is it? If the problem is one group beholding to a single party, the flip-side of that coin is that same group being abused/taken-for-granted/ignored by the other party. This is within the other party to control. Republicans have a whole lot more say in this then they receive credit for having; they are not victims here.Report

      • Nob Akimoto Nob Akimoto says:

        Your concern sounds suspiciously like the “Democrats are plantation owners” argument that conservatives love to trot out against African American voters. I mean, this isn’t a new thing, is it? Ever since the GOP rebelled against GWB’s attempts to get some sort of more humane immigration system in place, they’ve basically been signalling quite loudly that they hate immigrants and their families. Hell, before this action they passed a bill right before the congressional recess that would have legally mandated the deportation of ALL Dreamers. At some point, when a group of people continue to split their support between people who sort of half-heartedly care about them and those that refuse to acknowledge the humanity of their family members…that’s probably more concerning.Report

      • Maybe it is more concerning, but that doesn’t mean the other concern isn’t still valid.Report

    • Avatar Michael Drew says:

      GC,

      The “you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law” describes a process called “deferred action” that is an established part of executive discretion on immigration, wherein people apply for action on removal to be officially deferred for a period of time. Given that their presence in the country is thereby recognized, this has customarily meant that (very) temporary papers (or cards) allowing employment are issued since it generally would be better for both the alien and the nation if they can work if they can find an employer. Congress hasn’t significantly objected to the use of this discretion before, and has occasionally formally adopted certain categories of people that the president has granted deferred action to as presumptively eligible for it (though I think even for those categories endorsed by Congress, the president/administration would still need to discretionarily grant the status, and could discretionarily deny it in individual cases ).Report

    • Nob Akimoto Nob Akimoto says:

      3. One effect of this policy could be to create a set of clients–undocumented immigrants and documented family members–who have a very strong stake in one party holding the presidency over another. I’m not sure if that’s good or bad. It’s probably both.

      Functionally, the moment the GOP decided to plant their flag as the party of old white men and xenophobes, they pretty much made sure that’s going to happen. You’re mistaking a symptom for the cause.Report

  13. Avatar Notme says:

    I find it ironic that not too long ago obama disclaimed the legal authority to issue executive amnesty. Now he claims when it suits him. I wonder if he was lying then or now? Even the new york times called him on this flip flop.Report

    • Avatar Don Zeko says:

      Because this isn’t amnesty, or at least it’s hard to tell because nobody can agree on what is or isn’t amnesty in the first place.Report

      • Avatar zic says:

        I would love for somebody to go around with a video camera and ask people what ‘amnesty’ means; KongressKritters and man on the street, both.

        It’s now one of those words, like ‘sustainable,’ that means whatever the speaker wants it to mean, whatever the listener wants it to mean, and who the hell knows if they mean the same thing.Report

  14. Avatar RTod says:

    Arrrggghhh….

    Why is *this* in off the cuff?Report