Here again is the DoJ's legal memorandum on the allowable scope of executive action in this context - you'll notice that it affirms the President's powers to act in some respects while denying it in others. I'd be glad to discuss it in depth but the document is necessarily long and technical.
http://www.justice.gov/sites/default/files/olc/opinions/atta...
I'm not expecting a legal brief but you haven't offered anything substantive at all. (Edit for formatting)
Presidents who try to weasel around the law, particularly when they spent the earlier part of the year telling us it wouldn't be right are out of line.
Presidents who try to weasel around the law, particularly when they spent the earlier part of the year telling us it wouldn't be right are out of line.
Except that that hasn't happened here; as far as I can tell changes announced by the President last week are entirely consistent with the law. Let's have another look at the memo, with the sentence you quoted in its context:
(^^ edited to fix a a word mistake - I said proposed instead of announced)
The Department of Homeland Security’s proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of DHS’s discretion to enforce the immigration laws.
The Department of Homeland Security’s proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS’s discretion to enforce the immigration laws.
The Department of Homeland Security’s proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS’s enforcement discretion.
(From http://www.justice.gov/sites/default/files/olc/opinions/atta...; emphasis added by me)
So the memo says that 2 proposed changes would be permissible, and one would not. You chose to quote only the last one, and make it look like Obama is riding roughshod over the law - except that his policy as announced only implemented the first two proposals. He said that only parents of US citizen or Legal Permanent Resident children would be able to apply for deferred action - there was no such provision for parents of children who received deferred action (often referred to in the media as 'DREAMers'), and Obama actually received some criticism from immigration activists over that.
You know, if you had simply said you think Obama's action is terrible policy I'd have no problem with that - I wouldn't agree, but it's a totally valid opinion. But instead you went for making claims that the President was acting outside the law, which are simply not supported by the facts, and now you've ended up pulling things out of context in an attempt to shore up your erroneous position, but which in fact undermine it further.
So yes, I still say your argument is bullshit.
No, I read the memo earlier when it was released. I still don't find either part compelling and I see it as more executive power grabbing, but let's look at it in detail since you don't actually point to any arguments beyond the memo, I guess I get to do all the work.
First, this memo is a learned opinion of lawyers who work for the executive branch. This is not an independent finding or court ruling.
The first part of the memo references only one case "See generally Reno v. Am.-Arab Anti-Discrim. Comm., 525 U.S. 471, 483–84 (1999)" which can be found at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vo... (the Supreme Court's actual page doesn't go back that far). The ruling for this one was "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation". The memo cited section is for the definition of "deferred action". Which is true, it talks at great length about deferred action.
While pointing out later on in the document it points out:
"It is entirely understandable, however, why Congress would want only the discretion-protecting provision of §1252(g) applied even to pending cases: because that provision is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings."
"This broad discretion [afforded the Executive] rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All of these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute."
I find the logic of using discretion that Congress has given the Executive branch in legislation as a way to speed the deportation process now being used to stop a large section of deporations to be counter to what the legislation intended.
While the memo goes on and says the one thing I believe:
"Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, "‘consciously and expressly adopt[] a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.""
This is the heart of the argument against this delay which is an abdication of its responsibilites. I have seen no argument, including from the memo stating the above line that makes me think this is anything but an abdication because the President couldn't get legislation from the lawfully elected body that is responsible for legislation that is to be faithfully executed by the President.
Beyond all this, I'm a little sick and tired of people cussing and thinking that makes good points. Name calling doesn't encourage anything other than deciding next time not to bother.
To take up some of your points:
"It is entirely understandable, however, why Congress would want only the discretion-protecting provision of §1252(g) applied even to pending cases: because that provision is specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings."
I'd argue in passing that the fragmentation and prolongation discussed there are to safeguard the (highly abbreviated) rights of an immigrant facing removal by providing an avenue of appeal where few other procedural options exist, as opposed to an expedition of removal proceedings.
I find the logic of using discretion that Congress has given the Executive branch in legislation as a way to speed the deportation process now being used to stop a large section of deporations to be counter to what the legislation intended.
It's hard to agree with your claim that discretion exists purely to speed the deportation process when the statute includes many provisions explicitly granting the Attorney-General discretion to do the opposite, eg 8 USC 1229b which lays out a wide variety of reasons that the Attorney-General might opt to cancel ongoing removal proceedings.
In general, relying on claims about legislative intent is the sign of a weak case; just as ambiguity in contracts is traditionally construed against the drafter, courts tend to hold Congress to the letter rather than the spirit of the law, since reasonable people can disagree about the latter. Congress had no difficulty specifying certain classes of aliens ineligible for relief under subsection C of the section above (spies, terrorist, and war criminals being the most obvious undesirables), so we could equally argue that had Congress intended a more exclusionary standard than that implemented by the executive, it could have legislated one, yet it chose not to do so. Indeed the few modifications to IIRIRA since 1994 have mostly broadened rather than narrowed the options for relief notwithstanding the more rigorous proscriptions against terrorism in the post-9/11 environment. During those 20 years (the majority of which featured GOP control of Congress and some of which featured that and GOP control of the White House) the illegal immigrant population swelled significantly but Congress declined to impose stricter rules or appropriate significant extra resources for enforcement, despite the huge reorganization of the government's domestic security apparatus into the DHS. For example Congress has chosen not to appropriate funds to clear the immigration court backlog, or to modernize the visa overstay database system, or to mandate the use of e-verify by employers (to name but three common complaints from champions of more rigorous enforcement).
This is the heart of the argument against this delay which is an abdication of its responsibilites. I have seen no argument, including from the memo stating the above line that makes me think this is anything but an abdication because the President couldn't get legislation from the lawfully elected body that is responsible for legislation that is to be faithfully executed by the President.
But as I've pointed out (and you have not disputed), The Executive branch is well within its rights to grant blanket stays of removal in response to things like natural disaster or war in foreign countries, and nobody outside of an ideological fringe complains that these are an abdication of responsibility. You might as easily argue that Obama's warning that anyone with a felony conviction will be deported amounts to a abridgement of the due process that Congress provided for - having a felony conviction already makes deportation more likely, but avenues for appeal do exist. It's easy to think of situations where rigid application of this felony-deportation standard will result in miscarriages of justice, as would the 5-year minimum residency requirement. It seems to me that you want the exercise of administrative discretion to tilt only one way, even if promulgating a new set of enforcement priorities (such as not expending resources tracking down people without any criminal record) should result in a more efficient outcome in the aggregate, where by 'efficient' I mean deporting more people who had the highest probability of being subject to removal under the pre-existing criteria due to their criminality.
So, if you don't like people's answers you feel you are entitled to cuss? Given how you seem to not actually look at the quote which is from the Supreme Court and explains the limits and intent of the ruling, I don't see any profit in keeping this going.
I don't see any profit in keeping this going either, though.
That's a bit inaccurate as well. Reagan and his administration were fairly open that they were not going to enforce sections of law as well, and in the same area, labor law. Particularly with directives sent to the Department of Labor's Occupational Safety and Health Administration.
http://www.nytimes.com/1984/06/09/opinion/looking-for-loopho...
The idea that Reagan was enforcing OSHA labor laws, but that Obama is not enforcing immigration labor laws, is a bit hard to swallow.