December 16, 2014

"It is quite unusual... Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President’s actions" on immigration.

Says lawprof Jonathan Adler. And on the merits, he's "not persuaded":
[T]he executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades.... It is true, as Judge Schwab notes, that the President’s announced policy identifies broad criteria for deferring removal of individuals unlawfully in the country. This would appear to make the action somewhat legislative, but I don’t think it’s enough to make the action unlawful.... It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution....

51 comments:

Anonymous said...

Adler, he's a libertarian, right?

A libertarian who would approve of the Obama Non Enforcement Policy under almost any circumstance?

I'm unpersuaded by Adler's lack of persuasion.

Skeptical Voter said...

Nothing intelligent to see here; move on.

mccullough said...

Adler is missing the context here. This judge follows the news and the political process like the rest of us. Obama has been autocratic and contemptuous.

It's the same reason the Supreme Court will say federal exchange subsidies weren't authorized by the ACA.

Obama has taken things way too far. The legal analysis in this decision is fine. Everyone knows what Obama has tried to do. And the courts are going to stop it

Sigivald said...

It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution

Well, I think that might well be unconstitutional, too, given that Congress has made it illegal and the Executive's job is to, well, execute the laws.

I mean, I think it's a horrible law and should be repealed, but it is the law, and I don't recall anything in the Constitution granting the Executive the power to unilaterally decline to enforce laws because he'd prefer not to.

rhhardin said...

Adler is pond scum. No character at all.

Thanks to the Imus Rutgers incident we all know that.

So you automatically wonder what he thinks a principle is, if he mentions one.

He should avoid mentioning principles, just as a short man doesn't describe anybody as tall, lest people wonder what he considers tall.

rhhardin said...

Or maybe that's Jonathan Alter.

n.n said...

Not only did Obama not protect the states against invasion, but he actually provided an incentive for it. Obama adheres to a DRAT policy: Displace, Replace, Abort, and Tax.

The leaders of second and third-world nations, including Mexico, welcome his illegitimacy, and are willing partners to facilitate disruption and corruption of America. They are happy to be relieved of their "burden", without actually engaging in abortion. The domestic "minority" leaders are happy to exploit democratic leverage and collect revenue from taxable assets, while reducing start up costs of children born to Americans.

Michelle Dulak Thomson said...

eric,

I'm unpersuaded by Adler's lack of persuasion.

Funny. I dove into the comments at VC just now, and the earliest layer is all about how Adler and the VC are toeing the GOP line and reflexively dis anything Obama does. I suppose it depends how you read the words, because the words themselves don't change.

Ken B said...

That fellow Hilter is a rotter too.

Michelle Dulak Thomson said...

rhhardin,

Or maybe that's Jonathan Alter.

Yup.

The Drill SGT said...

I was struck by reading something that Micky Kaus wrote about how either teh Won wanted to be reversed, or he was full of Hubris. Teh Won has been on national TV hispandering about how his non-EO will be irreversible by future Presidents, but the Judicial system will look at those statements unkindly when asked by Gov Abbott and others for a stay of implementation, the basis of which has to be a demonstration of irrevocable harm...

Revenant said...

It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution

Perhaps, but Obama's decision to provide them with special documents goes quite beyond that. It would be like DAs deciding not merely to cease prosecuting marijuana possession, but to issue marijuana users special "permission to smoke weed" licenses he invented himself. The first half of that is legal, the second pretty clearly isn't.

Revenant said...
This comment has been removed by the author.
Michael said...

I wish, instead, that the emperor would have decreed that 12 million marijuana "criminals" not be prosecuted.

Or that 12 million drug criminals be released from the pen.

Skyler said...

Adler believes anything anyone tells him about global warming, no matter how insensible. I don't think his word will be the defining argument on the matter.

Michael K said...

"I was struck by reading something that Micky Kaus wrote"

I was, too. Obama is so devious that I am not sure he even knows what he is doing. If you ever read Allan Drury's "A Senate Journal" you will recognize that president who will lie when the truth will serve as well.

Paul said...

The first crack in Obama's unilateral edicts has appeared.

More will follow as he becomes lamer and lamer (as in duck.)

By mid 2015 he will be denounced by both sides of the isle.

Michelle Dulak Thomson said...

Skyler,

Adler believes anything anyone tells him about global warming, no matter how insensible.

Considering that different people must be telling him flat-out incompatible things about global warming, I'd think that must be difficult. And yet his own position on global warming seems reasonably stable, whatever you think of it. Perhaps you'd like to rephrase?

Hagar said...

Has anyone seen any actual documents setting forth this "new policy," or are they all going by what the President has said in various speeches recorded on TV?

Do such speeches carry any weight with the Supremes, or are they just talk?

Jess said...

The judge was faced with a decision on a matter that involved an illegal alien that pleaded guilty to being in the U.S. illegally. While sifting through the evidence, he discovered the unique circumstance indicated the individual was denied the same reliefs afforded by the memos sent by the director of Homeland Security.

The decision points out the suggestion memos circumvent existing laws, allows the defendant to change their plea, and the mandates of Obama not only circumvent laws, they are beyond the restraints of his power as written in the Constitution.

Regardless of the professors views, the actual progression demands judicial proceedings that can take months. Meanwhile, those that wish to not be faced with administrative, or criminal, penalties for their actions can cease to obey the mandates, with the protection of the courts.

Owen said...

Has Obama even signed any of these orders, or is it all still double-fake?

Assuming he's signed what he needs to, the question for me is: how much discretion has he demanded?

That is a function of the law he's been asked to execute faithfully. If it is a simple law, there is little room for a claim of executive discretion in order to appy the "idea" of the law to the gnarly facts of a particular case.

If the law is complicated, maybe there's more room for such a claim.

But then add to the foregoing analysis the number of instances in which the law will be applied. If you have a complicated law with a small target population, there is a strong claim for lots of executive discretion. Add also the "inexperience/novelty" dimension: if this is a new and tricky area, you cut the executive more slack to figure it out.

But here: you have a whole BUNCH of people in the target population, you have a pretty straightforwared body of law, you have lots of experience/minimal legal novelty. So: not much scope for executive discretion.

Yet he wants to invoke that, and all of it, and more.

Because We Can't Wait!

It is kind of weird to hear the arguments about how this is suddenly a big problem, and requires MILLIONS of waivers on a blanket basis (each justified as the exercise of individual discretion? Hello?). The number of waivers equals or exceeds the number of "regular-way" cases covered by the law. The will of Congress has been completely swamped by the whim of the God-King.

damikesc said...

Except Obama told EVERYBODY that they will ignore laws passed by Congress.

Does he not notice the difference?

Can a DA PUBLICLY tell everybody that they will ignore certain laws?

Drago said...

Owen: "Has Obama even signed any of these orders, or is it all still double-fake?"

Double-fake.

Obama "directed" (one must suppose verbally) to DHS Secretary Jeh Johnson to generate a memorandum or two that says (one must suppose) we will not enforce our immigration laws.

Hagar said...

If officials follow policies that they think they have heard the President state on TV, but there never were any written directives to their agency, can they be charged with failure to properly execute their offices?

Hagar said...

And if we question whether the President has authority to issue these kind of directives, then certainly no mere cabinet secretary (such as, say, Jeh Johnson) can do so except on express orders from the President, no?

Yancey Ward said...

It is quicksand one stands on if one is looking for lack of standing to stop a court from taking this matter up for decision. Courts and judges take up the cases they want to take up. Ultimately, within the court system at least, the restraint on that is at the appeals level and, ultimately, SCOTUS. I wouldn't just assume the states suing have "no standing"- that is a phrase defined by the court at hand.

The Godfather said...

The first issue discussed in the DOJ/OLC memo supporting the President's policy is whether the government can focus its limited resources on illegal aliens who have committed crimes, etc. The conclusion is that, given limited resources, the executive can establish such priorities. It's hard to dispute that.

If the courts conclude that that principle is correct, then no matter what else the courts say, the people benefited by Obama's non-amnesty amnesty are not going to be deported. Perhaps they won't get working papers, but it's hard to see how that would improve things for our unemployed and underemployed citizens.

We really do need a solution, but Obama's actions, and the predictable reactions to them, move us away from any hope of finding one.

Terry said...

I do not know if anyone on this thread wants to take a stab at this, but --
Suppose a president says he is not going to enforce laws that punish an employer for hiring a person not permitted to work in the US. A few years later a new administration with a different attitude begins to prosecute employers who took advantage of the 'administrative amnesty' of the previous administration and hired people who weren't legally allowed to work in the US.
What happens? Can the employers be prosecuted retroactively?
Regardless of any executive order (or memorandum) produced by Obama, these people are still breaking a law passed by congress.

PB said...

Immigration and naturalization would seem to be in a separate category from other laws over which executive/prosecutor discretion is applied. Specifically, it is defined in the constitution (Article I, Section 8, Clause 4 of the Constitution empowers Congress to “establish an uniform Rule of Naturalization”)as an "enumerated power" and is the responsibility of Congress and Congress has set the rules. They should be obeyed to the letter.

Can the president waive the citizenship rules? Can the president waive the 1st through 10th amendments categorically? I don't think so.

Anonymous said...

As someone should point out in EVERY post Althouse makes here regarding Obama: SHE,the self-described Constitutional law voted, TWICE, for this tyrannical leftist monster!!!

How smart can you be, Ann, not to have seen what many others saw before this Destroyer of the American Republic took office?

chickelit said...

jelink said...
As someone should point out in EVERY post Althouse makes here regarding Obama: SHE,the self-described Constitutional law voted, TWICE, for this tyrannical leftist monster!!!

Foul!

I believe she claims to have only voted twice for Barack Obama -- both times in 2008. But she remains quite adamant about the correctness of those votes, despite what the Administration has become.

Lighten up and let people evolve.

Terry said...

If I were a judge, I would ask myself in what way does this executive order accomplish tasks that are delegated to the President?
If they were honest (and they are not) liberals would have a problem with allowing a president to choose to amnesty 4 million illegals, or to have them all arrested and deported, each action being equally democratic, legal, and constitutional.

Carnifex said...

I say using the new retro-active powers discovereed by the D's trying to prosecute CIA interegators, we just wait till we have a R president, and congress, and then try this entire administration, down to the lowest peon, with treason.

tim maguire said...

It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution....

Adler's right, it wouldn't be unconstitutional, it would be deriliction of duty. Does Adler understand the difference between a President of the United States and a US attorney?

sparrow said...

Adler's no libertarian if he argues so easily for strong uncontrolled centralized power. Principled argument is so rare these days.

Hagar said...

I don't think the purpose of these actions are to "succeed," but to create such a mess that Congress will have to take up "comprehensive immigration reform" whether the Republicans want to or not.

And of course, set up blocks to vote Democratic, now and forever. It is what "community organizers" do.

Hagar said...

I don't think legislation arrived at in this manner is going to be good for anybody.

damikesc said...

I don't think the purpose of these actions are to "succeed," but to create such a mess that Congress will have to take up "comprehensive immigration reform" whether the Republicans want to or not.

And of course, set up blocks to vote Democratic, now and forever. It is what "community organizers" do.


Except, if the leadership had a clue, they'd notice that the public is AGAINST the immigration plan.

And pissing off people who we can always never allow to vote (they should NEVER become citizens if they enter illegally) hardly is a loss.

Simply forbid non-citizens from voting in any race with any national implication (meaning CA can allow illegals to vote for governor or state assembly, but US Congress? Nope)

Hagar said...

There is no "plan," damikesc,
beyond stirring up the pot and living on the grievances created.

Anonymous said...

Teh Won has been on national TV

Teh Won? The hotshot rugby player in China who just got busted in a sex scandal?

That has nothing to do with this issue. Obama has no authority to prosecute him for crimes committed under Chinese law, nor is he able to pardon him for those alleged crimes.

Bryan C said...

"It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution...."

Except in this case, the prosecutor is telling his office to grant marijuana users immunity for past crimes, too. And then the prosecutor is ordering his staff to reallocate the federal budget to buy each offender a forged medical marijuana license and a gift certificate at the local head shop.

n.n said...

Carnifex:

That's dangerous territory. We do not want to engage in a Hutu-Tutsi cycle of redistributive and retributive change.

wildswan said...

The whole mental health Holocaust in Germany started in 1939 with a memorandum from Hitler which "expanded the authority of physicians" to kill the mentally ill without being prosecuted as the existing laws required. So in a tyranny a simple memorandum can "expand authority" of designated persons to disregard the law. And this is the kind of memorandum Obama issued in the immigration case - that the authority of law officers has been expanded to disregard the law.

Matthew Sablan said...

"What happens? Can the employers be prosecuted retroactively?"

-- I'd assume you need to look at the statute of limitations.

damikesc said...

-- I'd assume you need to look at the statute of limitations.

Conservatives would be wise to publicly advise that they will review all orders and memoranda and cease the ones that are illegal.

The one thing businesses cannot handle is uncertainty.

There is no "plan," damikesc,
beyond stirring up the pot and living on the grievances created.


Oh, there is a definite plan.

"Bring in voters to vote for Democrats".

That is the entire plan. Always has been.

These same people leaving shitholes come here and vote for laws that turned their homes INTO shitholes.

Thorley Winston said...

Conservatives would be wise to publicly advise that they will review all orders and memoranda and cease the ones that are illegal.

The one thing businesses cannot handle is uncertainty.

The thing about executive orders is that it’s even easier for the next administration to undo what the last one did via executive order. Especially since anyone who signs up for this will have had to provide their name and address so the new administration will know where to send the paddy wagon.

Crunchy Frog said...

Illegals don't have to vote to have an electoral impact.

Remember the big hullabaloo about "statistical sampling" during the last census? It was all about getting illegal aliens counted for redistricting purposes. The more people that live in blue areas, regardless of whether they are supposed to be in country or not, the more blue congresscritters and state legislators can be shoehorned into those areas, and the more electoral college votes states with large illegal alien populations (all of which happen to be blue, other than Texas) will be able to command.

Getting illegals "out of the shadows" means getting them on the census rolls. Democrats are playing the long game with 2020 in mind.

Dan Hossley said...

I'm not sure Adler actually read the opinion. The Judge seems to think that a prosecutor has authority in individual cases but not entire classes of culprits.

The first being "discretion", the latter being "law making".

I'm not a lawyer, but the Judge states that discretion has always been exercised on a case by case basis. Not exactly a subtle distinction. How could Adler miss that?

Terry said...

Crunchy frog wrote:
"Getting illegals "out of the shadows" means getting them on the census rolls. Democrats are playing the long game with 2020 in mind."

Because the future doesn't just happen, it has to be created!

Leon Trotsky wrote:
"As long as I breathe I hope. As long as I breathe I shall fight for the future, that radiant future, in which man, strong and beautiful, will become master of the drifting stream of his history and will direct it towards the boundless horizons of beauty, joy and happiness!"

Lenin put Trostsky in charge of setting up death camps after the revolution. Trotsky was also one of the people who promoted the idea that belonging to certain social classes should, itself, be a crime in the Soviet Union. The radiant future was not supposed to be for everyone, I guess.

Terry said...
This comment has been removed by the author.
Terry said...

Damiksek wrote:
"Simply forbid non-citizens from voting in any race with any national implication (meaning CA can allow illegals to vote for governor or state assembly, but US Congress? Nope)"
They aren't citizens. If they are still citizens of another country, you have a problem where foreign citizens are voting in Mexico and Cali, meaning the alien voters may be voting for policies that favor whatever country they are from at the expense of legal citizens of Cali.