Obama v. Obama on Executive Power

Intrepid reader A.I. drew my attention to Jon Stewart at the Daily Show, who scores a big hit against Fox News and The Washington Times. Here is the quote I used in my last post, taken from the latter source:

With respect to the notion that I could suspend deportations through executive order, that's just not the case, because there are laws on the books that Congress has passed and I know that everybody here at Bell is studying hard so you know we have three branches of government. Congresses passes the law. The executive branch's job is to enforce and implement those laws and then the judiciary has to interpret the law. There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system, that for me through simply an executive order ignore those mandates would not conform with my appropriate role as president.

Here is the rest of the comment that I did not include in my early post:

That does not mean, though, that we can't make decisions that emphasize enforcement on those who have engaged in criminal activity. It also doesn't mean that we can't strongly advocate or propose legislation that would change the law in order to make it more fair...more just and ultimately would help young people do the right thing and whose talents we want to embrace in order to succeed as a country.

Despite the snide remarks of my commenters about Moonies, the second part was included in the Washington Times article; so any fault is mind.

Nothing in this added passage helps the President much. Yes, he has the power to prioritize when it comes to enforcing the law and to advocate changes in the law. He does not here claim the right to use the former power to enact legal rules that were specifically rejected by Congress. In fact, he explicitly denies that he has power to do exactly what he did by his recent executive order: suspend by fiat "laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system."

Sean Hannity at Fox, by contrast, did selectively edit a different set of remarks by the President. Here is the bit that was played on Hannity:

This notion that somehow I can just change the laws unilaterally is just not true [break] The fact of the matter is there are laws on the books that I have to enforce and I think that there has been a great disservice done to getting the Dream Act passed and getting comprehensive immigration reform passed by perpetrating the notion that somehow I can go and do these things. It's just not true.

Here is the rest of the remark:

What we can do is to prioritize enforcement since there are limited enforcement resources and say we're not going to go chasing after this young man or anybody else who's been acting responsibly and would otherwise qualify for legal status if the Dream Act passed.

Hannity should have included the entire passage. His edited version creates a false impression here of the contrast between the President's words and his deeds and that is journalistic malpractice.

The entire version presents a contradiction in the President's argument. No, I can't enact the Dream Act on my own, he tells us, but I can "prioritize enforcement" in order to suspend deportation of those who "would otherwise qualify for legal status if the Dream Act passed." In other words, the President was contemplating the use of that power to enact provisions from the Dream Act. The prerogative of a President to prioritize enforcement is, as Mr. Obama admits, justified in order to efficiently use limited resources. It is not for the sake of doing an end run around Congress.

I would note that Jon Stewart engages in his own act of egregious falsification and it is unintentionally instructive. He scoffs at the notion that there is something unprecedented in the President's action.

Apparently what Obama has done is completely without precedent in our Democracy. To find examples of a President acting unilaterally on deportation policy would, I mean to find examples of that you'd have to go back as far as, ahhhhh, George W. Bush.

Stewart plays a clip, apparently from a foreign news agency, praising President Bush 43 for a reprieve of Liberians during that country's civil war. Stewart goes on to point out that Clinton, Bush 41, and Ronald Reagan did much the same.

What Stewart neglects to tell his audience is that all these actions were done within the confines of existing immigration law. US immigration law allows persons who do not otherwise qualify as refugees to receive Temporary Protected Status or Deferred Enforced Departure status. These apply to specific groups of people who would face persecution or extreme hardship if they were repatriated. The exceptions have been used for persons from war-torn countries in Africa and Central America. The Obama Administration issued a TPS for persons from Haiti after the earthquake. Those are examples of executive authority exercise within the law as opposed to executive fiat modifying the law.

What the President did in his recent action on immigration has nothing to do with prosecutorial discretion, as his surrogates kept insisting on Sunday talk shows, or with prioritizing enforcement. He was not acting in order to save resources, but to "do the right thing." He suspended deportations otherwise demanded by law, a group defined by standards from a bill that Congress failed to pass. I have taken no position on whether this is constitutional or not. I only point out that the President has clearly said that it is unconstitutional and that it is within his powers. Anyway, he did it.

Comments

[Bill Fleming]

Seems like you are just confounding yourself here, KB. Obama had the authority to do what he did and he did it. He did something similar then the repeal of DADT was pending by instructing the military to stop all actions pertaining to outing and discharging gays. Here's the message you (and your GOP pals) should be sending instead: "Don't like Obama's executive order on immigration? Pass the Dream Act."

i.e. Lead, follow, or get out of the way (aka: 'do the next right thing'.)

[A.I.]

"The prerogative of a President to prioritize enforcement is, as Mr. Obama admits, justified in order to efficiently use limited resources. It is not for the sake of doing an end run around Congress."

What if the former just happens to do the latter KB? Resources are limited. Border-state governors like Jan Brewer complain the federal government isn't doing enough to stop criminal activity. She tends to overstate, but the truth is, there are ranchers along the border who fear checking their fences lest they encounter armed drug smugglers. And part of the reason the fences need checking is the smugglers are cutting them.

That's just one example. The fact is, there are various criminals among undocumented aliens from various countries. The "available resources" are insufficient to counter their activities. So, why would one divert those resources to apprehension and deportation of those obeying every law save some dealing with immigration?

If congress doesn't think Obama's priorities are appropriate, they should increase immigration enforcement funding to the point no prioritization is needed. Or, they should specifically state that some portion of funding be allocated to deporting those who were brought here by their parents. Of course that would take political courage considering the polling I've seen on the matter. So my bet is nothing will happen beyond a bunch of bluster about the nerve of that Obama.

[Jon S.]

Bill and AI have intriguing arguments. Certainly the executive has discretion as to what he will prioritize within the limits of the law, although I recall much screaming from the left when the Bush Justice Department announced that it would put more emphasis on voter fraud than voter intimidation. I can't wait to see a President Romney announce that it is just "priorities" that stop the executive from enforcing certain regulation, or from collecting taxes, or...well you get the point.

Still, it is rich in recent weeks to see conservatives, who have been defending executive power for two generations, to start squealing when Obama stretches the limits of executive power. One of Schaff's Iron Laws of Politics is that if the president does it and gets away with it, it's constitutional (yes, that is somewhat, but only somewhat, tongue in cheek). These are political questions and will be solved politically. Me, I don't like the idea of the president saying he will not enforce laws and justifying it by "priorities" language. Just like I don't like the president unilaterally killing Americans citizens abroad because he deems them "terrorists" (here I think KB disagrees with me somewhat). I think Congress was lax in holding George W. Bush accountable for his muscular use of executive power. Not that Bush was violating the law, in my opinion, but there has got to be pushback to keep the president honest. I am glad the Republicans are pushing back and I await for them to whine if Democrats in Congress rightly do the same to a President Romney (an eventuality I don't think we will need to worry about).

[Ken Blanchard]

Interesting comment. I generally agree with both A.I. and Jon on the merits of what the President did. AS for Bill's comment, I would only that the President explicitly denied he had the power to do what he did and then he did it. Fine. We know by now how much his words are worth.

However, I want to get this on record before the election. Suppose the next President concludes that parts of our environmental laws are bad policy. He pushes legislation to repeal them and the legislation fails. So the President simply stops enforcing, say, wetlands protections. That's prioritizing! I now have Bill on record as saying that the President can do that, don't I Bill?

[Bill Fleming]

As long as he goes unchallenged by the other branches, KB, yes, so it seems. It's a pretty powerful position. Most powerful on earth some would argue.

[Donald Pay]

Many environmental laws come with citizen suit provisions. If the feds fail to enforce, citizens can bring suit after providing the feds a 90 day window to act. A group I was involved with in SD used those provisions in 1992 to get EPA to enforce the Clean Water Act on heap leach gold mining. It turned out EPA agreed with our position, so we settled the suit and EPA started to implement the CWA on heap leach mining.

[Stan Gibilisco]

This move by Obama represents a stroke of pure genius (whether from him, his advisors, or both, matters not).

No Republican would dare bring forth a hard challenge to the constitutionality of this move, because then, the Republican party would become (even more) alienated from Hispanics.

According to the sources I'm hearing, Obama has gotten a big boost among Hispanic voters as a result of this little display of gall.

As for it being an end-run around Congress, heck, Congress is so impotent right now that one could walk around them. One could crawl around them.

Obama saw daylight, and he charged through for a touchdown.

That said, we still have to find out what the Supremes think of Obamacare.

And, although it veers off topic (at first blush), I still have to figure out why I have to pay for the privilege of keeping money in the bank.

I just got my account statement today. From May 15 to June 14 I got one cent of interest.

Wealth is being redistributed, all right? But exactly contrary to the way Obama would have it go.

Can't Obama, with all his dictatorial power, make some sort of decree about that, like, say, set a minimum interest rate that banks must pay? (I am kidding, right?)

Augustus Caesar Obama ... like it or not ... if Congress doesn't like it then they ought to do something about it. But they won't. They can't. Congress can't do anything at all.

The voters can fire Obama if they don't like him and his gall. But I suspect they'll -- we'll -- reelect him. That's the great savage beauty of democracy. We get what we deserve, every time.

[Ken Blanchard]

Bill: well it sure is now! Why bother with a Congress at all. Just let the President make it up as he goes along. At any rate, I have what I asked for. The next Republican President can simply decide not to enforce any law at his or her whim, according to Bill and Donald and, I think, A.I. I have my doubts that this check will clear.

[Donald Pay]

Your idea of justice doesn't include "doing the right thing?" What would Jesus say about that? I kind of have the feeling Jesus wouldn't understand your point here. I think he'd look right through you into an evil soul.

Your blind ideology is a very serious character flaw that you need to work on. Blind enforcement of certain laws may lead to evil. Take, for example, Jim Crow laws. Throwing people in prison and deporting them because their parents brought them here when they were toddlers is evil. Obama ended that.

[Jimi]

"Throwing people in prison and deporting them because their parents brought them here when they were toddlers is evil. Obama ended that."

This is amusing because this language can only come from someone who lives far from the epicenter, has a real lack of understanding of the historical lessons learned from the past, an incomprehension of why the 1986 Amnesty was granted, it's focus on Hispanic Illegals, and the absolute political bamboozle the Democrats made on the American people and the entire political system itself.

I wonder if this person ever bothered to ask itself, if this "new policy" applied to Canadians?

The policy is not new.....this is political warfare, and of course the Left would play this card at this stage of the game. Its Theater and the latest play showing is called, Thy Wilt of Desperation.

How come we have no comments from the geniuses here on the Left pointing out that, if there actually was a policy of deportation of illegal children and it was enforced, there would be no need to change policy and create "new" policy to prevent deporting them, because there would not be 800,000 of them to deal with? Its typical "ends justify the means" mob behavior, exposing a fatal case secular humanist indoctrination.

This comment, "if Congress doesn't like it then they ought to do something about it," gives me the urge to dip my Nuts in Chocolate Pudding, because the fact of the matter is that Congress did do something about it. They wrote a law.....put it up for a vote......voted on it......and it Failed. The hypocrisy is mind blowing.

Yet you got Donald running around talking about, "what would Jesus say?" I am a god fearing soul, so I am not going to speak for the Holy, but I'll wager that he's smart enough to know that you can't equate Jim Crow Laws to Illegal Immigration.

[larry kurtz]

You earth haters make me puke: American Indians youth are being detained in immigration raids because they often don't carry ID.

"Looking at the economic costs of deportation, deportation is not an option. A 2010 estimate put the price of mass deportation at $285 billion over five years. This represents over $900 in new federal taxes for every U.S. man woman and child. The Cato Institute puts the price tag at $80 billion, but that’s just deporting 30% of the workers."

http://globalpublicsquare.blogs.cnn.com/2012/06/10/a-patchwork-of-state-immigration-laws/

[A.I.]

Your sudden concern over presidential power is a bit perplexing KB. Have you expressed your outrage at every instance of presidents ignoring the War Powers Act of 1973...there have been a few. How about GWB's handling of voting rights laws mentioned by Jon above?

Obama issued a directive that complies with legislation that passed the House and received a 55-vote majority in the Senate but never reached his desk because of arcane Senate rules allowing filibuster through cloture. He didn't so much do an end run as he helped a dysfunctional body achieve an objective in spite of itself.

Does it concern guys like Donald, Bill and myself (to the extent we are alike) that a Republican president might selectively not enforce portions of laws we support? Of course it does. That's what presidents do and thats why I, for one, generally (actually, always) support Democrats.

[Ken Blanchard]

A.I.: yes, I have expressed concern (not outrage) over Obama ignoring the War Powers act in the case of Libya. I have never had much confidence in the WPA, but Democrats surely thought it was a great achievement. Obama gutted it. I don't remember what your position was, but some of my interlocutors here weren't the least bit disturbed.

Your second paragraph is telling. Obama's "directive" complied with a bill that never passed. Okay! You might want to review Article I of the Constitution. That is, if you have a copy of the Constitution. You certainly don't seem to take the document seriously.

As for your last paragraph: fine. You've now acknowledged that any President can ignore the law as he or she sees fit. Your defense of your hero has led you to this. I suggest that this may come back to haunt you, but that does little good. There is no principle that you are not prepared to sacrifice for the sake of love.