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Friday, November 21, 2014

Cruising the Web

This headline from Ed Morrissey about sums it up.
Semi-retired President invokes the Sick And Tired clause of the Constitution
Obama claims that he has to act because Congress hasn't acted doesn't mean that he can just ignore Congress. In fact, knowing that Obama was planning this action, the voters sure didn't vote an endorsement of Democrats in this past election. If the situation was so exigent, why didn't he move in the first two years when he had control of both houses and could have easily passed what he wanted? If the situation was such an emergency, why could he postpone it until after the election? His reasoning simply disintegrates in face of those questions.

As someone who isn't necessarily opposed to some sort of amnesty for illegal immigrants who have been here working, I'm still appalled by the President's action. This will send the message to anyone who wants to come here and not wait in line for legal documents that they just have to get here and wait around for amnesty. The border has to be better secured first before such a regularization of immigrants' legal status can go through or all we are doing is strengthening the magnet. But this has to be done legislatively. Every day I teach students about how the Constitution is supposed to work. And nowhere in there is there a section that says that a president who hasn't been able to get Congress to go along can just do it on his own. That violates every principle underlying the structure of our government. And once stretched like this by Obama, it will never return. We've been expanding the powers of the federal government and the president since 1788 but this is one huge increase of a different character that will fundamentally alter our system of supposed checks and balances.

The President included a section in his speech saying how Homeland Security will be focused on going after the criminals trying to enter the country. Really? Six years into his presidency, he's just deciding to do this? Please.

Rich Lowry examines the lawlessness of the President's action.
President Obama insisted the other day that his previous ringing statements about the separation of powers were only in response to questions about whether he could impose comprehensive immigration reform on his own. This is so demonstrably false, you wonder why he even bothered. As Glenn Kessler of the Washington Post demonstrated, the president was repeatedly asked about exactly the sort of action he is now about to undertake.

The president and his supporters pretend that the Immigration and Nationality Act contains a gigantic asterisk that says, notwithstanding the elaborate legal infrastructure set out in the law and the distinctions among different categories of immigrants, the president can do whatever he wants.

No Congress would ever write the law this way. And even if it did, it wouldn't pass constitutional muster.
"The case law," according to David Rivkin of the law firm Baker Hostetler, "clearly recognizes that delegations of any type of legislative authority to the president must contain some limiting principles; they can never be open-ended. To do otherwise, would unconstitutionally transfer core legislative powers to the president."

The president's defenders rely on the notion of prosecutorial discretion, the existence of which is uncontroversial. The executive doesn’t have the resources to hunt down and prosecute every violator of our laws, and therefore has to establish enforcement priorities.

The Congressional Research Service did a report on prosecutorial discretion and immigration that, for the most part, emphasizes its piddling reach. It says, for instance, that immigration officers may use discretion to decide whom to stop, question, and arrest; whether to issue or cancel a Notice to Appear; whether to settle or dismiss a proceeding; and so on.

No one heretofore has thought this leeway could be used by a president as warrant to eviscerate an entire statutory scheme.

Again, if the reporting is accurate, the administration will announce a class of people numbering in the millions that can get work permits, Social Security numbers, and legal identification, at clear variance with the laws passed by Congress.

This isn’t prosecutorial discretion—making enforcement decisions based on limited resources—it is affirmatively expending resources not appropriated by Congress for this purpose to administer a new system.

Under the Obama precedent, future presidents can use the pretense of prosecutorial discretion to dispense with swaths of the federal code and unilaterally come up with alternatives.

Can’t prosecute all pot dealers? Ignore the drug laws. Can’t find every tax scofflaw in the country? Re-write the tax code. The only limits will be the legal imagination and brazenness of the White House at any given moment.

Obama and Reid sure have changed their minds on illegal immigration over the years.
Pop quiz time. Who said the following?

Number one: “There’s no denying that many blacks share the same anxieties as many whites about the wave of illegal immigration flooding our Southern border — a sense that what’s happening now is fundamentally different from what has gone on before. Not all of these fears are irrational.”

Number two: “Taxpayers simply cannot continue to sustain new populations the size of San Diego or the state of Nevada every year.”

Number three: “If this huge influx of mostly low-skill workers provides some benefits to the economy … it also threatens to depress further the wages of blue-collar Americans and put strains on an already over-burdened safety net.”

Number four: “Americans have sat freely around a bountiful dinner table. The table is becoming overcrowded. People are squeezing in and elbowing each other to get what they want. Unless changes are made, our dinner table eventually will collapse, and no one will have security and opportunity.”

Number five: “Native-born Americans suspect that it is they, and not the immigrant, who are being forced to adapt.”

The answers are: Barack Obama, numbers 1, 3 and 5. Harry Reid, 2 and 4.


But that was then (in Barack’s case 2006, in Reid’s 1994) and this is now.
Avik Roy refutes the implication of Obama's order that these new legalized illegal immigrants will be paying "their fair share of taxes."
But the vast majority of undocumented aliens don’t make enough in income to have a net income-tax liability. As I note in Forbes, a 2006 analysis by the Century Foundation, a progressive think tank, concludes that “we can be virtually certain that illegal immigrants earned less than $24,000 per year, on average, probably much less.” That amounts to around $29,000 in 2014 dollars, well below the threshold where an American has a net income-tax liability.

Legalizing this population is unlikely to result in significantly higher payroll-tax revenue, because many illegals have fake Social Security numbers that their employers use to pay payroll taxes on their behalf. Century estimates that “about $6 billion in annual payroll taxes are allocated to non-existent Social Security accounts. . . . This sum is certainly more than any income taxes that would be owed on the earnings involved.”

Century concludes that “it is likely that the undocumented workers will end up receiving rather than paying the Treasury money.” (Emphasis in the original.)
Roy goes on in Forbes to explain how Obama's order will involve Obamacare.
In 2014, two-member households with incomes below $62,920—400 percent of the Federal Poverty Level—are eligible for subsidized coverage on Obamacare’s insurance exchanges. Those with incomes below 138 percent of FPL, in states that expanded Medicaid, are eligible for that program.

One key point is that Obamacare’s employer mandate, combined with the President’s executive order, incentivizes companies to hire amnestied illegal immigrants over low-income U.S. citizens. The employer mandate’s fines are only levied on companies that don’t offer health coverage to workers eligible for Obamacare exchange subsidies; if the amnestied population is not eligible for those subsidies, employers are better off higher those individuals over legal immigrants and citizens.
Roy also points out that Republicans should pass the sort of bill strengthening the border that they've been wanting to pass.
While much of the talk on Capitol Hill has been about shutting down the government in response to the Obama executive order, what Republicans ought to do is pass the border security bill they’ve always wanted to pass. They no longer need to trade border security for amnesty, because the President has already granted amnesty. “With the family-visa issue out of the way, the new GOP majority would be free to pass immigration policies it prefers,” observes former George W. Bush staffer Juleanna Glover.
The GOP should put together separate bills addressing specific problems with immigration and send those to Obama. See if he'll veto what he has professed to support. Now that they don't have to make tradeoffs for amnesty, they can pass commonsense provisions. The WSJ, which has been supportive of regularizing the status of illegal immigrants, but opposes the President's lawlessness makes this recommendation.
The best GOP revenge would be to trump him on immigration. Before Mr. Obama’s decree, smart Republicans were discussing a legislative strategy focusing on piecemeal immigration reforms. Separate bills addressing individual problems (border security, agriculture and tech visas) could pass with rotating majorities that show the GOP has immigration solutions of its own. Some bills might get to Mr. Obama’s desk, forcing him to reveal his cynical political hand if he uses his veto to block durable reform.
And no, what Reagan and Bush did were not precedents for what Obama has done. As Gabriel Maior writes,
What the Progressive commentariat is not telling you is that the Reagan and Bush immigration orders looked nothing like Obama’s creation of a new, open-ended form of immigration relief....

In 1986, faced with a large and growing population of illegal aliens, Congress created a new, time-limited form of immigration relief for certain aliens who, among other things, had to have come to the United States more than six years previously. This is the much ballyhooed Reagan amnesty. It was, unfortunately, riddled with fraud in its execution, the uncovering of which is still roiling the immigrant community. But even setting that aside it left President Reagan with a moral dilemma. Congress’ amnesty was large—just shy of 3 million people—and it had the unanticipated effect of splitting up freshly-legalized parents from their illegally-present minor children who did not qualify for relief.

So Reagan, seeing this family unity problem that Congress had not anticipated or addressed when it granted amnesty to millions of parents, issued an executive order to defer the removal of children of the people who had applied for immigration amnesty under Congress’ new law. He allowed those children to remain in the United States while their parents’ applications for amnesty were pending. A few years later, Bush 41 extended this bit of administrative grace to these same children plus certain spouses of the aliens who had actually been granted immigration amnesty under Congress’ new law.

Congress, though it had desired to grant amnesty, had not considered and not included the spouses and children. Importantly, nor had it excluded them. So Presidents Reagan and Bush 41 filled that statutory gap. “What do we do with spouses and children?” INS asked. “Well,” the executive branch leaders said, “defer their deportation. Decline to exercise your lawful authority for the particular cases that are related to those Congress has offered amnesty.”

These Reagan and Bush 41 executive actions were obviously different than what Obama is doing now. They were trying to implement a complicated amnesty that Congress had already passed. Congress’ action was a form of immigration relief that obviously fit within our constitutional system. Moreover, Congress left a gap when it came to immediate family members, including minor children, of individuals who qualified for the amnesty. Presidents Reagan and Bush 41 forbore from deporting people in that select group.

Obama, in contrast to Reagan and Bush 41, is not trying to implement a lawfully created amnesty. There has been no congressional amnesty. In fact, there has been no immigration action from Congress in the past few years except the post-9/11 REAL ID Act of 2005, which made it harder, not easier, for aliens to qualify for immigration relief. More than that, Congress declined to pass a legalization of the type Obama is issuing during both Obama’s term and in a hotly-contested bill during President Bush 43′s term.

Thus, Obama is clearly contravening both ordinary practice and the wishes of Congress—as expressed in statute—by declaring an amnesty himself. This is nothing like Reagan’s or Bush’s attempts to implement Congress’ amnesty. The progressive media’s claims otherwise are blatant lies, relying on their readers’ ignorance of events in the late 1980s and early 1990s. Such attempts should be rejected wherever they are found.


Meanwhile, this is truly scary.
Critical U.S. infrastructures are being penetrated by foreign states in preparation for devastating future cyber attacks designed to cripple electrical power, communications and financial networks, the commander of the U.S. Cyber Command told Congress on Thursday.

Adm. Mike Rogers, Cybercom chief and director of the National Security Agency, said foreign states have broken into the networks that control industrial systems for a range of what the U.S. government considers 16 critical infrastructures, ranging from electrical power, water, telecommunications and financial systems.

“We have seen instances where we’re observing intrusions into industrial control systems,” Rogers told the House Permanent Select Committee on Intelligence.

“What concerns us is that access, that capability, can be used by nation-states, groups or individuals to take down that capability,” he said, noting that hackers believed linked to Iran destroyed 3,000 computers at the Saudi state oil company Aramco.
If this comes to pass, we won't have to worry about regularizing illegal immigrants. We'll have much bigger problems to worry about. And perhaps we'll wonder if the Department of Homeland Security should have been more focused on protecting us from cyber attacks than spending the entire year trying to figure out the President's amnesty plan.

The Associated Press fact-checks the President.
OBAMA: "It does not grant citizenship, or the right to stay here permanently, or offer the same benefits that citizens receive - only Congress can do that. All we're saying is we're not going to deport you."

THE FACTS: He's saying, and doing, more than that. The changes also will make those covered eligible for work permits, allowing them to be employed in the country legally and compete with citizens and legal residents for better-paying jobs.

___

OBAMA: "Although this summer, there was a brief spike in unaccompanied children being apprehended at our border, the number of such children is now actually lower than it's been in nearly two years."

THE FACTS: The numbers certainly surged this year, but it was more than a "brief spike." The number of unaccompanied children apprehended at the border has been on the rise since the 2011 budget year. That year about 16,000 children were found crossing the border alone. In 2012, the Border Patrol reported more than 24,000 children, followed by more than 38,800 in 2013. In the last budget year, more than 68,361 children were apprehended.

___

OBAMA: "Overall, the number of people trying to cross our border illegally is at its lowest level since the 1970s. Those are the facts."

THE FACTS: Indeed, in the 2014 budget year the Border Patrol made 486,651 arrests of border crossers, among the fewest since the early 1970s. But border arrests have been on the rise since 2011.

The decline in crossings is not purely, or perhaps even primarily, due to the Obama administration. The deep economic recession early in his presidency and the shaky aftermath made the U.S. a less attractive place to come for work. The increase in arrests since 2011 also can be traced in part to the economy — as the recovery improved, more people came in search of opportunity.

___

OBAMA: "When I took office, I committed to fixing this broken immigration system. And I began by doing what I could to secure our borders."

THE FACTS: He overlooked the fact that he promised as a candidate for president in 2008 to have an immigration bill during his first year in office and move forward on it quickly. He never kept that promise to the Latino community.
Ed Morrissey notes a fact check from Jay Carney of all people.

7 comments:

wmr333 said...

Yesterday really upset me. It really seemed like crossing the Rubicon, a permanent change in our constitutional order, but nobody is very angry or worried about it. People I really admire like Krauthammer seem to just keep saying "Don't take the impeachment bait", but if this attack on the constitution is not impeachable, then nothing is, future political victories be damned.

Unknown said...

This is quite, quite Constitutional. We may not like it, it may be bringing a Nuke to a bar fight, but the wording is quite clear, alarmingly so. " and he shall have Power to Grant Reprieves and Pardons for Offenses against the
United States, except in Cases of Impeachment.". One of the problems with Congress being so proactive. Make everything a Federal case, and you have given the President complete discretion over which laws will be enforced......

tfhr said...

Unk,

Are you saying that issues like immigration policy and sovereignty are not federal "cases", or are you suggesting that presidents get to pick and choose which laws shall be enforced?

Obama stated many times before that he did not have the legal authority to do what he is now attempting. What changed besides his lame duck status and his utter defeat in the mid-terms?

Unknown said...

The quote is directly from the Constitution. " and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.". It is because immigration and Sovereignty are Federal cases that the President gets to pick and choose what laws shall be enforced. After all, what is a Pardon but a big "Never Mind"? Again, read the quote. The Pardon power is wide slam open. There is no limit to the number of Reprieves or Pardons the President can issue. There is no format he has to follow when doing so. There is no Congressional oversight. There is no Judicial oversight. There is no State oversight. The ONLY restriction is "except in Cases of Impeachment", which does not apply here, right?

What changed? Nothing. Obama lies. It's what he does. He lied then. He's lying now. Note he did not mention the "Reprieve and Pardon" power when doing this. Alas, nothing in the Constitution formally stops the President from lying, or even from committing Perjury (Thanks Pornstar!).......

Robert M. Mitchell Jr.

tfhr said...

ADM Rogers' comments should be more alarming to Americans because he is telling you about known vulnerabilities and threats to US critical infrastructure (CIKR) that are not even under his authority to protect or defend.

The Department of Homeland Security and other law enforcement agencies are tasked and (should) have the requisite authorities to protect civilian critical infrastructure but I would say that there is more uncertainty about where the lines are drawn and what various agencies can even do than any current degree of coordination. ADM Rogers' authorities are limited to protecting DOD interests as USCYBERCOM's commander and his authorities as NSA director are complicated by FISA limits and the many gaps that exist between intelligence agencies and law enforcement.

Put simply, we are more vulnerable to a much, much more dangerous threat than we were on 9-11. If that's not clear enough, then imagine that you leave your home each day with the doors open with everything about you and every thing you own out on the tables, desks, etc., waiting to be taken or destroyed.

tfhr said...

Robert M. Mitchell Jr.,

I wasn't aware that Obama was granting pardons - has this been formally stated? My impression is that he has said he will not deport an ambiguous group of people that are not in the country legally. Wouldn't a pardon require a by name identification?

As for perjury, a felony, which does rise to the level of a "high crime", could and should result in impeachment.

I cannot argue with you about Obama: He is a liar.

Unknown said...

First, there is no Constitutional Requirement that a Pardon must be "Formally Stated". Also, you would think so, but it is not so stated in the Constitution.......

Second, he is not granting Pardons, he is granting Reprieves. Brilliant Politics, if awful Statecraft. Reprieve : Noun : a cancellation or postponement of a punishment. The next President could, in theory, end the Reprieve (Have fun living under that Sword of Damocles!) , and given how much press the "Real Conservative(TM)" frothers have been given, wouldn't you vote Democrat, if you we one of the poor souls so "blessed"?

Agreed, but the Founders designed the system with the idea that Congress would be more jealous of it's power. For real reform, the Republicans need two-thirds......

Robert M. Mitchell Jr.