The Obama Administration again waited for a Friday afternoon to announce a major new policy change — repeating its practice of timing important announcements to reduce media and public attention. The latest change is obviously controversial. The Administration will no longer deport illegal aliens under 30 who came to this country as children — effectively negating part of the federal law. It raises some troubling questions, again, about President Obama assertion of executive power. While liberals again celebrate the unilateral action, they ignore that danger that the next president may also simply chose to ignore whole areas of the federal law and criminal code in areas ranging from the environment to employment discrimination. It is one more brick in the wall of the Imperial Presidency constructed under Barack Obama — a wall that may prove difficult to dismantle for citizens in the future.
Presidents are given extreme deference in decisions on the enforcement of federal laws. It would be difficult for anyone to challenge this policy for that reason. However, that does not mean that this is a good practice — regardless of the merits of specific policy. It is also hard to ignore the obvious political play for Hispanic votes in key swing states. Obama waited for years to take this action and did so with polls showing that Hispanics will likely select the next president. Even some of the more liberal columnists and reporters are acknowledging that this change appears driven by politics.
Obama officials do not deny that they are circumventing Congress. In a recent interview, senior Obama adviser David Plouff told CNN “if congress would act, we would be happy to sign the DREAM Act tomorrow.” Since it has not done so, the White House is going to accomplish the same objection unilaterally.
This is different from past presidents who have not made deportation a priority in their policies. Despite the criticism of Obama, he is certainly no less aggressive on deportation than his predecessors. Indeed, he may be more aggressive in terms of numbers. Presidents like George W. Bush clearly did not push for deportation based solely on illegal status. The Administration, however, was forced to admit this long-suspected policy in court in fighting the Arizona law — stating that it did conflict with federal policy because the Administration did not want mass deportations.
This is different. Here the Administration is implementing a categorical policy not to enforce federal law, which dictates deportation for illegal immigrations regardless of their age. Congress has refused to pass such laws and this is an obvious effort to circumvent Congress — something of a signature for this Administration. Liberals were outraged by Bush’s use of signing statements as a circumvention of Congress. Yet, when Obama broke his promise and started using signing statements, liberals were again silent. Now, he has gone further and (rather than advancing a restrictive interpretation) he has announced that he will simply not enforce the law.
The change could also create a new conflict with states passing tough immigration laws. We are awaiting the ruling of the Supreme Court in the Arizona case where the Administration may lose some ground. The announcement on Friday could be an effort to preempt the decision. If the Administration had already decided to stop deportations, it would look bad to come after the decision and appear to be circumventing both the judicial and legislative branches.
This is part of a pattern for the Administration. For example, the Administration has announced that it will ignore two federal statutes that bar betting across state lines. That effectively legalized Internet gambling. While his Administration claims that it has no choice but to enforce other laws like marijuana enforcement and for years, both DOMA and Don’t Ask, Don’t Tell laws, it has not hesitated to declare other laws as unenforceable as a matter of policy. Ultimately, it took the same approach to DOMA — after years of defending it. DOMA is striking in that the Administration still refuses to accept that sexual orientation should be treated like race or gender as a category of discrimination. If it did, the refusal to defend DOMA would have been more clearly based on a view that it is unconstitutional. Instead, the Administration made general claims of states rights (that do not apply to areas like medical marijuana it seems) and even more vague references to privacy and equal protection.
What is left is a conflicted approach to enforcement based on the president’s changing views — in the latest case a change that seems motivated in large part by political advantage.
Liberals and civil libertarians were united on such questions in denouncing the circumvention of Congress by Bush. However, once again, there appears to be a blindness to the dangers of this practice when it comes to Obama. What will happen if a President Romney simply declares that he is not going to enforce environmental law or conflict laws or other parts of the federal code? Is the difference going to be simply that he is not Obama? Liberals are losing not just their credibility but principles in these controversies. Our system is based on a careful balancing of power that forces disparate factional groups to reach agreements in the legislative process. That is what brings the stability to our system.
This latest controversy is not about young illegal immigrants. There are strong policy arguments in favor of this change. However, those arguments need to be made in Congress. This should also not be an “after-the-fact” debate following a change late on a Friday where the president simply grants the equivalent of amnesty for hundreds of thousands of people. Polls show a sharply divided population with a majority favoring tougher immigration laws. We have a political system designed to address such divisive issues. It does not always work the way presidents demand. Indeed, the Democrats previously used filibusters and other techniques to block the Bush Administration and how the Republicans are doing the same thing. However, that is the point. Presidents should not be able to simply make federal laws discretionary to their whim or will. This may be a worthy end but it is the wrong means in a system based on shared powers of government.
Source: Politico
People who have caused problems do not get prosecuted.
That’s how our country works.
People get prosecuted for crimes that are written down — if someone decides to prosecute them.
Then, again, there are those who get prosecuted for things that are NOT written down as crimes — that too.
So yes, people have standards. The wholesale abandonment of all proper and appropriate standards in a selective way has been the modus operandi of our government(s) (that is, state and federal) for so long that I can’t scream about an instance of it when the pile-up is so great that the horizon no longer appears in view. I think it was an end-run around Congress, yes, but am I up in arms about it? Well, let’s see. Compared to drones killing innocent people, random government targeting and destruction of ordinary people’s life interests, every kind of economic crime and social abomination, and a few etceteras, well, um…nah.
“While liberals again celebrate the unilateral action…”
While today’s political liberals may celebrate unilateral action that gives them what they want, they surely oppose it when they don’t want the ends that come of it. If it wasn’t for double-standards, some people wouldn’t have any standards at all.
The scope and breadth of this seems to extend far beyond any reasonable definition of prosecutorial discretion, that is allocating the use resources to their highest and best use. It’s immigration policy. But that is one of the enumerated powers of Congress, not the Presidency. The president’s lawyer had to be reminded of this distinction before the 9th Circuit Court of Appeals in the case of Arizona’s SB 1070.
Edwin Needler: The Constitution of vests the subject matter immigration with the national government.
Judge John Noonan: No, national government no, in Congress. There’s a big difference between the national government and Congress.
Obama could have well just instructed DHS not prosecute deportations on the small number of the population this policy includes that would have actually faced the deportation. That was already being done in many cases. Instead he is offering de facto legalization and work permits to what may be more that a million illegal immigrants.
By the way, if those to whom Obama intends to give this temporary amnesty as a down payment are to be viewed as innocent because their parents made the decision to bring them here, why aren’t the parents held responsible? Instead they too will remain in the country illegally with little chance of being deported, if they don’t get arrested for other crimes, until they too are given amnesty or are allowed to be sponsored by their amnestied children.
I checked out the language in OYLER. Here:
Mr. Justice CLARK delivered the opinion of the Court.
The petitioners in these consolidated cases are serving life sentences imposed under West Virginia’s habitual criminal statute. This Act provides for a mandatory life sentence upon the third conviction ‘of a crime punishable by confinement in a penitentiary.’ The increased penalty is to be invoked by an information filed by the prosecuting attorney ‘immediately upon conviction and before sentence.’ Alleging that this Act had been applied without advance notice and to only a minority of those subject to its provisions, in violation respectively of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the petitioners filed separate petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia. Both of their petitions were denied without opinion. Unlike [Chewning case, citation] here each of the petitioners was represented by counsel at the time he was sentenced. Finding the cases representative of the many recidivist cases that have been docketed in this Court the past few Terms, we granted certiorari. [citation omitted] We now affirm the judgment in each case.
William Oyler, … was convicted of murder in the second degree on February 5, 1953, which offense carried a penalty of from 5 to 18 years’ imprisonment. Sentence was deferred, and on February 11 his motion for a new trial was overruled. On that same date the Prosecuting Attorney requested and was granted leave to file an information in writing alleging that Oyler was the same person who had suffered three prior convictions in Pennsylvania which were punishable by confinement in a penitentiary. * * *
II.
Petitioners also claim they were denied the equal protection of law guaranteed by the Fourteenth Amendment. In his petition for a writ of habeas corpus to the Supreme Court of Appeals of West Virginia, Oyler stated:
‘Petitioner was discriminated against as an Habitual Criminal in that from January, 1940, to June, 1955, there were six men sentenced in the Taylor County Circuit Court who were subject to prosecution as Habitual offenders, Petitioner was the only man thus sentenced during this period. It is a matter of record that the five men who were not prosecuted as Habitual Criminals during this period, all had three or more felony convictions and sentences as adults, and Petitioner’s former convictions were a result of Juvenile Court actions.
The Petitioner was discriminated against by selective use of a mandatory State Statute, in that 904 men who were known offenders throughout the State of West Virginia were not sentenced as required by the mandatory Statutes, Chapter 61, Article 11, Sections 18 and 19 of the Code. Equal Protection and Equal Justice was (sic) denied.’
Statistical data based on prison records were appended to the petition to support the latter allegation. Crabtree in his petition included similar statistical support and alleged:
‘The said Statute are (sic) administered and applied in such a manner as to be in violation of Equal Protection and Equal Justice therefor in conflict with the Fourteenth Amendment to the Constitution of the United States.’
Thus petitioners’ contention is that the habitual criminal statute imposes a mandatory duty on the prosecuting authorities to seek the severer penalty against all persons coming within the statutory standards but that it is done only in a minority of cases. This, petitioners argue, denies equal protection to those persons against whom the heavier penalty is enforced. We note that it is not stated whether the failure to proceed against other three-time offenders was due to lack of knowledge of the prior offenses on the part of the prosecutors or was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons. The statistics merely show that according to penitentiary records a high percentage of those subject to the law have not been proceeded against. There is no indication that these records of previous convictions, which may not have been compiled until after the three-time offenders had reached the penitentiary, were available to the prosecutors.11 Hence the allegations set out no more than a failure to prosecute others because of a lack of knowledge of their prior offenses. This does not deny equal protection due petitioners under the Fourteenth Amendment. [examples omitted].
Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, supra; cf [other cases] (by implication). * * *
OK, it’s the President saying a certain kind of enforcement will not be used against “illegals” under 30 who came here when they were children. Therefore, they came here when they were not legally responsible for their own legal status, nor were they legally able to choose where to live or with whom. There are actually custody battles involving 17 year old children who are not given the right to choose where they live. So the “illegals” against whom Obama has instructed his executive branch NOT to enforce by means of deportation are a “class” of people whose status has been imposed upon them not by their own choice — their own presumably illegal or unlawful choice — but by the choice of other individuals. It IS selective prosecution. Is it selective prosecution in violation of anybody’s federally protected rights?
I guess not. Nobody has an expressible RIGHT to have them deported.
So we get a grandson clause instead of a grandfather one.
Or a statute of limitations, in reverse. Up to thirty years you get a freebie, but not citizenship (which stinks, I think, if your nose is clean).
Both ways is good by me.
Suggest starting over with new C.
Talk about gridlock. Or a new bunch of parties with new ideas. Nader for garbage collector. Starts with Cheney and Rumsfeld.
Oyler says that prosecutorial discretion exercised in the absence “a deliberate policy of proceeding only in a certain class of cases or against specific persons.” is not a violation of Equal Protection and is therefore constitutional.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=368&invol=448
Rafflaw: “Finally, even Prof. Turley did not suggest that Obama was violating the Equal Protection Clause.”
No, but he hints at it:
Turley: “The Administration will no longer deport illegal aliens under 30 who came to this country as children — effectively negating part of the federal law.”
Turley: “Here the Administration is implementing a categorical policy not to enforce federal law, which dictates deportation for illegal immigrations regardless of their age.”
All I did was tie up the loose end with this:
By law of non-contradiction, Oyler clearly holds that prosecutorial discretion exercised as “the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons” IS a violation of the Equal Protection Clause and is therefore unconstitutional.
Bob,
I have told you three times now, my comments about congress was related to your statement that they were merely being uncooperative when they were being obstructive on purpose. I did not state that as justification for Obama’s decision to not deport the young immigrants.
As to the Equal Protection Clause argument, I made no comment about that in my earlier responses. However, The link that you provided suggests the following holding “failure to proceed against other offenders because of a lack of knowledge of prior offenses or because of the exercise of reasonable selectivity in enforcement does not deny equal protection to persons who are prosecuted.” This holding seems to suggest that Obama has the discretion because being selective in enforcement does not deny equal protection to those that are prosecuted. A fuller reading of the Justia version of the opinion which your Wiki link was from suggests that the majority stated that the petitioners did not allege that the selective enforcement was due to a disallowed arbitrary classification so therefore the claim was not allowed. I am not sure this is a good case for your argument.I will qualify that my statement is based only on the reading of the Justia version that your citation linked to. Maybe a reading of the official decision might be a stronger example for your argument.
Finally, even Prof. Turley did not suggest that Obama was violating the Equal Protection Clause. He asserts that the enforcement policy change was a bad idea because it is an end run around Congress.
Rafflaw: “So now I am throwing a tantrum because I am suggesting something that you don’t agree with?”
Rafflaw,
Has congress exercised any power that it was not granted in Article I? Has congress broken or ignored any laws?
No.
Pointing to the (legal) obstructive actions of congress as justification for ignoring the law is a tantrum because it’s no justification at all.
Furthermore, no amount of latitude afforded via prosecutorial discretion permits violation of the Equal Protection Clause.
http://en.wikipedia.org/wiki/Oyler_v._Boles
If you have a counter legal argument, other than repeated appeals to bare prosecutorial discretion as discounted above, I’d like to hear it.
Bob,
So now I am throwing a tantrum because I am suggesting something that you don’t agree with? Once again, I stated that the reference to Congress was to correct your statement that Congress was doing more than merely not agreeing with Obama. I also suggested that Prof. Turley stated that a President is given wide latitude on the discretion issue.
I am not a shameless apologetic as you are suggesting. I have criticized Obamaon this site when he needed to be criticized. However, I also understand when the Right is selling the country a bill of goods and puposely hijacking the economy for partisan gain.
As to Jill, she is the one who has attacked myself and others here for the mortal sin of actually agreeing with Obama or stating that I would vote for an imperfect Obama over anyone the Republicans have presented. She doesn’t like that and because of that I am an apologist in her eyes. She is entitled to her opinion. But I have the same right. At least I thought I did.Or maybe it is just another one of my tantrums.
Bob, Mike,
Jill has some valid points….. But as Mike states, she does seem to paint with broad strokes, which has been pointed out is quite irritating. At present, the only reason to vote against Mitt is the potential of a nomination to the Sct. Other than that, most white males not doing suffrage would be more inclined to vote 3rd party…… But here that will get you labeled a Republican…… I used to be party loyalist until I developed a conscience…… Yes, I voted for Nader……
Like I said Mike, she can irritate me too.
The better part of wisdom is to stay out of bar room brawls.
Frankly, I think the whole shebang was corrupted no later than the Andrew Jackson’s administration.
Although, as a child of my times, I have a certain affection for JFK, RFK and MLKjr as the modern breaking point, where pride of self and country were defeated as motivations for our national actions.
So, Jill can abandon her love of the FF and the pure past that never existed.
Even after all the puffery of the anti-Obama people, no one has changed their mind in this small blog group. I suppose it gets frustrating for those that want to skim off a percentage or two and guarantee a win for Romney. Most of the women will stick with the candidate that Planned Parenthood has endorsed, and so will the men that support them.
Mike,
First of all, my words were not directed solely at you and my reference to Jill goes to a long history of apologists attacking her for being such an annoying gadfly.
Accordingly, the comment
“This is just another illustration of the “it’s okay if our guy does it” justification”
goes to my problem with the shameless apologetics of liberals when it comes to Obama.
Second, I don’t need a degree in psychology to notice that Jill irritates you. Hell, she, like Glen Greenwald, bothers me a bit as well; only because she constantly reminds me of all the things I’m not paying attention to.
But instead of noting it and moving on, what do you do? You attack her with crap like
“I don’t need to be lectured about the crap this Country has done since 9/11”
and
“I certainly don’t need a history lesson from some who think that this lack of Constitutional government is something new.”
Are you questioning the truth of her assertions?
No.
So what are you doing Mike?
What is this?
“You give me Bradley Manning Jill and I’ll raise with Kent State, COINTELPRO, Napalming Southeast Asian Jungles, carpet bombing Cambodia and the deaths of JFK, RFK and MLK.”
What does that have to do with anything she said? Jill is talking about things happening NOW. Things happening now that we, the people, are in some way responsible for to the extent that we ignore it and let it happen NOW.
I’m sorry Mr. Peabody but due to the fact that we don’t have a “Way Back” machine to travel into the past and remedy the problems you brought to our attention, you have no rational reason for dismissing Jill’s concerns for things happening NOW.
Accordingly, if you are a rational man, your hostility directed towards Jill just might be related to something else that’s eating you.
Then again, I Kant really tell can I.
Bob,
My problem with Jill is not the information she delivers, but with her dismissal and denigration of those who have different ideas. She is just as guilty as Bron is when he calls everything not Bron socialist, except to give her her due Jill usually has facts, whereas Bron doesn’t.
“This is just another illustration of the “it’s okay if our guy does it” justification”
Bob,
If you’ve read what I’ve written and actually were capable of comprehending it, then quite frankly your statement above makes you a blatant liar, or is it that you just feel like playing? Bob, I’ve argued you to at least to a draw in the past and only desisted after a personal call from a acquaintance of yours asked me to desist for the good of the blog. In all these years I didn’t take you for a liar, though now I may have to reassess. I’ll let my exact words speak for themselves in this case because I know how hard it is for you to back down on anything. That’s why it really is so funny that you would quote Persig, because you behavior is anything but zen. Have a ice day. 🙂
“Who me?? Lie to myself about Obama???
How dare you suggest such a thing Jill!”
Bob,
Spare me the Zen, although Persig was a good guide back in the day, Perls’ whole philosophy which I live, drips with it. Now I could prove to you that I’m not lying to myself about Obama and much else, but you see that would entail me having to spend hours finding, then posting quote after quote from my own writing. If you have so little respect for me, there’s little point in trying to prove differently to you, after all I really don’t remember you ever admitting you were wrong…….about anything. However, in your case we understand that you may not always be right, but you Kant be wrong. You’ve got authority on your side. 🙂 🙂
Gene,
I don’t need to agree with Jill’s arguments to point out that the apologetic rhetoric around here is neck deep.
This is just another illustration of the “it’s okay if our guy does it” justification speak and the hostility towards Jill speaks to the self-deception involved.
Bob,
True, true, but by the same token Jill often paints with a very large brush. While I’ll stipulate that Obama does seem to get an easier pass by his supporters for some of actions, I don’t think he gets a free pass here.
Malsiha,
You’d be surprised at the food and drink you can make with roses. Everything from rose pesto to rosewater to candies, cakes and jellies. I briefly dated a Turkish girl in college. She made me a Turkish pudding called Asure (sp?) that was flavored with rose petals.
I find the hostility directed towards Jill quite amusing and quite telling. God forbid that someone actually take the time to remind us of everything we let slide; much less point out that we may be lying to ourselves.
Who me?? Lie to myself about Obama???
How dare you suggest such a thing Jill!
Let me tell you all the reasons why I’m not lying to myself…..(yada yada)
“You are never dedicated to something you have complete confidence in. No one is fanatically shouting that the sun is going to rise tomorrow. They know it’s going to rise tomorrow. When people are fanatically dedicated to political or religious faiths or any other kinds of dogmas or goals, it’s always because these dogmas or goals are in doubt.” — R. Pirsig
Rafflaw,
It is settled law that you cannot use prosecutorial discretion to violate the Equal Protection Clause.
http://en.wikipedia.org/wiki/Oyler_v._Boles
Attempting to justify such an action by pointing to congress is nothing more than a tantrum.