Commentary Magazine


Topic: illegal immigration

Issue is the Constitution, Not the Shutdown

With time running out to avoid defunding the Department of Homeland Security, almost all of the focus of news coverage of the story has been on the contentious battle between Republicans who are in favor and those opposed to a stand that will lead to a shutdown. There is good reason for this, especially as House Speaker John Boehner and Senate Majority Leader Mitch McConnell desperately to try to maneuver to keep their previous promises to avoid another politically damaging government shutdown. But though it’s hard to take our eyes off of the spectacle of impending civil war among Republicans, the real author of this week’s drama doesn’t work on Capitol Hill. President Obama was in Miami last night for a televised infomercial on MSNBC in which he tried to take a victory lap for having started the fight that is causing the shutdown. But despite his efforts to place himself on what he thinks is the right side of history and the slavish applause of the liberal mainstream media for this stand, the real issue today remains Obama’s blatant disregard for the Constitution, not whether or not Boehner and McConnell can find a way out of the corner into which Obama has forced them.

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With time running out to avoid defunding the Department of Homeland Security, almost all of the focus of news coverage of the story has been on the contentious battle between Republicans who are in favor and those opposed to a stand that will lead to a shutdown. There is good reason for this, especially as House Speaker John Boehner and Senate Majority Leader Mitch McConnell desperately to try to maneuver to keep their previous promises to avoid another politically damaging government shutdown. But though it’s hard to take our eyes off of the spectacle of impending civil war among Republicans, the real author of this week’s drama doesn’t work on Capitol Hill. President Obama was in Miami last night for a televised infomercial on MSNBC in which he tried to take a victory lap for having started the fight that is causing the shutdown. But despite his efforts to place himself on what he thinks is the right side of history and the slavish applause of the liberal mainstream media for this stand, the real issue today remains Obama’s blatant disregard for the Constitution, not whether or not Boehner and McConnell can find a way out of the corner into which Obama has forced them.

While many conservatives continue to call for the Republican leadership to stand their ground against the Democrats, both Boehner and McConnell understand that this is a losing fight. Even if, as many on the right have aptly pointed out, the DHS shutdown is more symbolic than actual since most of its employees will continue to show up for work, that symbolism is the last thing the GOP needs right now.

At a time when concern over terrorism is on the rise and the country is coming to grips with the president’s inept and halfhearted approach to fighting ISIS and its allies, any defunding measure aimed at any part of the country’s defenses is political poison. Unlike the sequester that continued in place for many months with few citizens noticing, a DHS shutdown is a nonstarter. That’s especially true since it will enable the president to change the topic from his own failures and put the spotlight on a fractious and dysfunctional Congress where both chambers have Republican majorities.

But as bad an idea as a shutdown might be, anyone tuning in to see Telemundo and MSNBC host Jose Diaz-Balart feeding questions to Obama in order to press him to even greater commitments to amnesty policies must realize that the drama in Congress is something of a diversion from the real problem: a president that believes he can legislate on his own without benefit of Congress.

Immigration isn’t the only issue on which Obama’s imperial presidency is flexing its muscles against the Constitution. The Iran nuclear talks seem to be heading toward an American agreement to a deal that would make the Islamist regime a threshold nuclear power now and give it a green light to create a bomb in at least ten years. But the president has no plans to present the most important foreign treaty the U.S. has signed in this generation to the Senate for approval, as the Constitution requires. By not calling it a treaty, he intends to circumvent the law so as to avoid the scrutiny and the judgment of the legislature.

But it is on immigration which the president has made the boldest move toward one-man rule in decades. By signing executive orders that amount to amnesty for up to five million illegal aliens, the president has with a stroke of the pen asserted a power that he previously had said 22 times was not his to exercise. Though a lawsuit brought by 26 states against this measure has had an initial success in a Texas federal court, Obama may be right to feel confident that eventually the courts will back him up on technicalities.

But by issuing orders to the relevant departments to stop enforcing the law mandating the deportation of illegals, the president is actually setting a dangerous precedent. A president who feels entitled to state what laws may or may not be enforced is one untrammeled by the normal constitutional constraints at the heart of American democracy.

While playing to a crowd of immigrants, the president says that the changing demography of the nation mandates a solution to the dilemma of up to 12 million illegals already in the country. But whether you think that Congress is wrong to fail to act on a plan to give them a path to citizenship or not, the notion that laws can still be annulled by presidential fiat is an untenable concept that would be swiftly condemned by Obama’s press cheering sections if it were a case of a Republican undoing some liberal project created by a predecessor.

More to the point, the continuing stream of illegals over the border, lured by promises of amnesty and confident that requests for asylum, whether justified or not, will keep them out of jail, will ensure that Obama’s approach will not solve the country’s problem at the border.

Obama may be right to think he’s won this news cycle as the Republicans seek a path, whether temporary or not, to retreat from their pledges to use the power of the purse to stop the executive orders from being implemented. But more surges of illegals in the future could change the political balance of power on this issue in ways that Democrats confident of Hispanic support don’t currently envision. The only enduring values here are the defense of the Constitution and the rule of law that Obama has trashed, not amnesty for illegals. Whatever happens this week in Washington, if Republicans are faithful to that principle, they won’t regret it in the long run.

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GOP Must Find a Way Out of Obama’s DHS De-Funding Trap

With only days to go before a deadline for funding the Department of Homeland Security, Senate Majority Leader Mitch McConnell is desperately seeking a way to sell Republicans in both houses of Congress on a plan to get themselves out of the trap that President Obama set for them. His conservative critics aren’t wrong when they say this is nothing more than a GOP surrender that gives up any hope of taking a stand against the president’s extralegal executive orders granting wholesale amnesty to up to five million illegal immigrants. But unless McConnell can persuade House Republicans to go along with him, the understandable desire to defund those parts of the government that will carry out the president’s orders will cause the party to embark on another suicide charge that might prove to be even more disastrous than the 2013 government shutdown.

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With only days to go before a deadline for funding the Department of Homeland Security, Senate Majority Leader Mitch McConnell is desperately seeking a way to sell Republicans in both houses of Congress on a plan to get themselves out of the trap that President Obama set for them. His conservative critics aren’t wrong when they say this is nothing more than a GOP surrender that gives up any hope of taking a stand against the president’s extralegal executive orders granting wholesale amnesty to up to five million illegal immigrants. But unless McConnell can persuade House Republicans to go along with him, the understandable desire to defund those parts of the government that will carry out the president’s orders will cause the party to embark on another suicide charge that might prove to be even more disastrous than the 2013 government shutdown.

Let’s specify that Tea Partiers and other GOP stalwarts are right to be outraged about the president’s end-run around the Constitution. The notion that a president has the right to legislate on his own simply because he says he gave Congress time to do what he wanted it to do and must now act since they failed to is absurd as well as reflecting contempt for the rule of law. Regardless of one’s views about the need for immigration reform, the president’s actions constitute an ominous precedent that presage a constitutional crisis as the executive branch runs roughshod over the normal order of government. Indeed, even many Democrats said as much last fall prior to the orders, especially those up for reelection.

But simply because something is wrong and should be stopped doesn’t necessarily mean there is a way to do it that is politically palatable. The orders were given in a way that there is no option for halting their implementation other than defunding the Immigration and Naturalization Service, which now falls under the purview of the Department of Homeland Security. The courts may rule in favor of the 26 states that have sued to halt Obama’s orders. The decision of one federal judge in Texas in favor of that suit has, at least temporarily, stopped Obama in his tracks. But unless that track works—and it is likely that it won’t—the only alternative is defunding DHS.

It is true that Republicans are attempting to keep the rest of Homeland Security operating while preventing INS from doing the president’s will with respect to amnesty. But with Democrats in the Senate filibustering that effort and the president ready to veto that measure even if the Upper Chamber’s minority doesn’t hold on, taking a stand on illegal immigration will shut down the entire department.

While most Americans don’t like the idea of government shutdowns under any circumstances, furloughs for DHS employees right now is about the worst political idea anyone in Washington could come up with. The GOP could probably get away with shutting down the Department of Education or Housing or Health, Education, and Welfare or any number of other federal bureaucracies and not be hurt by it. But defunding DHS at a time of rising concern about terrorism is a political loser as well as arguably very bad policy. It not only creates another liberal narrative about Republican obstructionists trying to stop the government from operating. It also allows the president to change the subject from his lack of a coherent strategy to defeat ISIS to the old tried-and-true meme about Republicans blowing up the government.

Conservatives are right that this isn’t fair. A principled stand by the GOP against Obama’s executive orders isn’t anymore extremist than the Democrats’ refusal to compromise or step back from amnesty. The assumption that Republicans should be blamed for a shutdown is based on biased media reporting that reflects Democratic talking points. Unfortunately, the public seems to have bought it, in no small measure because the GOP’s small-government philosophy seems to make it more likely to act as if the government does deserve to be blown up.

But fair or unfair, it is a matter of political reality. As even Senator Marco Rubio noted today, shutting down DHS is simply unthinkable right now. Thus, the GOP should swallow hard and follow McConnell’s plan by passing a “clean” funding bill for DHS and then having a separate vote on a measure to stop the executive orders that will inevitably fail. If the House balks, it won’t matter that President Obama and the Democrats deserve the lion’s share of the blame for starting the fight with the orders and then filibustering a GOP bill to fund DHS.

Such an outcome is frustrating for party activists that turned out and elected a Republican Senate as well as a GOP-run House. But as infuriating as it may be, they need to realize that the only way to rescind those orders is going to mean electing a Republican president of the United States. And that is a prospect that will be less likely if they wind up shutting down DHS and further damaging their brand as a party at time when they should be gaining ground at the Democrats’ expense on foreign policy.

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Immigration and the End of the Rule of Law

This past week, liberals cried foul when a federal district court in Brownsville, Texas sided with the 26 states that have sued to try and prevent the administration from implementing President Obama’s executive orders that created a de facto amnesty for up to five million illegal immigrants. The administration vowed to seek to overturn the ruling on appeal and many legal experts say their chances are good. But while conservatives like Judge Andrew Hanen are fighting a rear-guard action trying to stop the president’s immigration end run around Congress, liberal judges are seeking to expand upon Obama’s efforts. On Friday, James Boasberg of the Federal District Court in the District of Columbia ruled that even those efforts undertaken by the administration to stem the flood of illegals could not continue. If upheld, that ruling will ensure that in addition to amnesty for illegals already here, efforts to deter future surges across the border may be doomed.

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This past week, liberals cried foul when a federal district court in Brownsville, Texas sided with the 26 states that have sued to try and prevent the administration from implementing President Obama’s executive orders that created a de facto amnesty for up to five million illegal immigrants. The administration vowed to seek to overturn the ruling on appeal and many legal experts say their chances are good. But while conservatives like Judge Andrew Hanen are fighting a rear-guard action trying to stop the president’s immigration end run around Congress, liberal judges are seeking to expand upon Obama’s efforts. On Friday, James Boasberg of the Federal District Court in the District of Columbia ruled that even those efforts undertaken by the administration to stem the flood of illegals could not continue. If upheld, that ruling will ensure that in addition to amnesty for illegals already here, efforts to deter future surges across the border may be doomed.

Judge Boasberg ruled that the government could no longer detain illegals that have crossed the border whether or not they apply for asylum. Though the massive wave of illegal immigrants, including tens of thousands of unaccompanied minors from Central America, was set off in no small measure by the perception that the administration would give them amnesty, to its credit, the Department of Homeland Security belatedly tried to send the opposite message. By imprisoning those who crossed the border illegally even if they claimed they were subjected to persecution at home, the government was seeking to make it clear that those who were caught must expect to be detained and then sent back home.

But Judge Boasberg heeded the pleas of the American Civil Liberties Union. The ACLU argued that the claim of persecution should be enough to allow these illegals the right to stay in the country until their asylum case was resolved. In practice that will mean that large numbers of illegals will be able to flout the law and stay here indefinitely, regardless of whether their claims of persecution are real or not. The judge ruled the DHS had no right to clamp down on those flooding the border because these persons’ “right to liberty” trumped considerations of national security or even the necessity to deter other illegals from following their example.

It may well be that many of those who came across the Rio Grande last summer fled difficult lives in their home countries where crime and violence have run rampant. But the notion that the low quality of life in Central America means that the U.S. may not control its borders or enforce the laws governing the right to immigrate to this country is both dubious law and catastrophic public policy.

Boasberg’s decision lays bear the problem at the heart of the debate about immigration.

There are strong arguments to be in favor of reforming a broken system. All of the approximately 11 million illegal immigrants already here are not going to be deported since the government has neither the resources nor the will to do so. Finding a solution to bring them in out of the shadows makes sense. The comprehensive bipartisan immigration law passed by the Senate in 2013 tried to do that at the same time as implementing measures to control the border.

But what those of us who had supported this approach learned last summer was that unless and until the border really was secured, there was no point in implementing policies that would resolve the status of those who were already here illegally. So long as the flood continued, amnesty for illegals would merely ensure a never-ending flow of more people coming across from Mexico. Most of these illegals are not criminals, but however much we might sympathize with their plight at home or their desire to realize the American dream, granting them a free pass would, in effect, simply erase the border. Though immigration strengthens the country, at a time of unprecedented worries about security and terrorism such a policy is an invitation to mayhem.

More to the point, so long as courts are willing to let anyone stay on any excuse, Congress is fully justified in thwarting any effort to liberalize the system.

The stakes in this argument don’t merely revolve around the status of illegals. If liberal federal judges and the president are determined to trash the rule of law in this manner, we are on the verge of a full-blown constitutional crisis. As much as there is reason to grant many illegals a path to legality if not citizenship, without first securing the border, such proposals ought to be off the table. Rather than contribute to a consensus that might create real immigration reform, both the president and liberal judges like Boasberg are creating a set of circumstances where it has become impossible.

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Court Immigration Ruling Doesn’t Solve Congress’s Homeland Security Dilemma

Republicans looking for a way out of their Department of Homeland Security funding tangle got a shot in the arm yesterday when a federal judge in Texas issued a ruling temporarily ordering the federal government to stop any implementation of President Obama’s executive orders granting amnesty to up to five million illegal aliens. Judge Andrew S. Hanen’s decision is a morale boost to those who agree that the president’s effort to bypass both Congress and the usual constitutional order was a blow to the rule of law. But it may not stop Obama’s effort for long and it won’t resolve an impasse in which a Senate Democratic filibuster of a House bill funding DHS has raised the possibility of a shutdown of the department. Hanen bolsters the sense among GOP members that they are right to press this issue. Yet it doesn’t provide them with the means to either block amnesty or to come out of this standoff without looking as bad or even worse than they did during the 2013 government shutdown.

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Republicans looking for a way out of their Department of Homeland Security funding tangle got a shot in the arm yesterday when a federal judge in Texas issued a ruling temporarily ordering the federal government to stop any implementation of President Obama’s executive orders granting amnesty to up to five million illegal aliens. Judge Andrew S. Hanen’s decision is a morale boost to those who agree that the president’s effort to bypass both Congress and the usual constitutional order was a blow to the rule of law. But it may not stop Obama’s effort for long and it won’t resolve an impasse in which a Senate Democratic filibuster of a House bill funding DHS has raised the possibility of a shutdown of the department. Hanen bolsters the sense among GOP members that they are right to press this issue. Yet it doesn’t provide them with the means to either block amnesty or to come out of this standoff without looking as bad or even worse than they did during the 2013 government shutdown.

Hanen is already on record as an outspoken critic of liberal immigration policies, but his ruling was on technical grounds rather than on the constitutionality of the presidential executive orders. With one of the programs granting legal status to those here without permission about to start receiving applications, the decision does stop its implementation. But if, as expected, the administration complies with the requirements to give notice of their procedures, the order might be quickly lifted at the appellate level. Writing from Brownsville, Texas along the border with Mexico, Hanen sided with the states that filed the lawsuit seeking to stop the implementation of the orders and believes they are right to say that the federal government has failed to enforce immigration laws in a way that “drains the states’ resources.” He’s right about that, but it’s far from clear that higher courts will uphold the ruling or even agree that the states have the legal standing to challenge the executive branch’s ability to enforce laws in any way it pleases, even if means acting in a manner that annuls a law passed by Congress.

Although Hanen and the plaintiffs in the lawsuit are right to argue that the president’s actions constitute a body blow to the rule of law, the administration may be right to term this ruling a mere “speed bump” on the road to granting millions of illegals the right to stay and work in the country. Though his high-handed behavior constitutes an end run around the Constitution, the president’s defenders may well be right in thinking that the concept of federal supremacy on the question of immigration dooms the lawsuit in the long run. Though House Speaker John Boehner and Senate Majority Leader Mitch McConnell would love for the courts to provide them with an escape hatch from the dispute over funding DHS, Judge Hanen isn’t likely to provide them with one.

That puts Republicans back in the back in the box in which they’ve been placed by Obama’s audacious decision to do what he said 22 times previously he didn’t have the power to do. If they don’t try and use the power of the purse to prevent Obama from nullifying a law they’ve passed, the GOP grass roots will rightly lambast their leaders for letting Obama get away with murder despite their control of both Houses of Congress. But if they stick to their position that they will not fund DHS without including provisions that will prevent Obama from carrying out his extralegal plans, they will once again be lambasted as a party that is stopping the government from performing its proper functions. Indeed, as disastrous as the 2013 government shutdown over ObamaCare funding was, a more limited shutdown that would affect Homeland Security just at a moment when concern over terrorism is at the top of the national agenda might be even more misguided.

In that sense, the Texas ruling may actually complicate things for Republicans in Washington. Hanen’s decision strengthens their sense that they are very much in the right and Obama in the wrong on the substance of this dispute. It also would make any retreat on the issue even more problematic for a pair of leaders who are already vulnerable to critics within their caucuses who see them as insufficiently tough in dealing with an unscrupulous administration with no respect for the law.

Our John Steele Gordon was right to point out that the engine of their problem is a liberal mainstream media that blames Republicans no matter what happens. The GOP was blamed for the shutdown in 2013 because Senate Republicans stood their ground. Today, when it is the Senate Democrats who are obstructing the passage of a House bill that would fund DHS, the media is still prepared to blame the Republicans for the consequences of their filibuster.

John may also be right that in the long run conservatives must stand up to liberal media bias and to attempt to make their slanted coverage the issue rather than lying down and accepting the role of whipping boys for Washington gridlock. But there is a reason why the GOP is always going to be blamed for upsetting the D.C. applecart. That’s because it is the Democrats who always defend the existing system and the prerogatives of big government even when that leads them to trash the Constitution. It is the Republicans who are in the position of trying to halt this runaway train. That is the right thing to do, but even the noblest cause must be conducted in a responsible manner. Defunding DHS at a time when ISIS is burning and beheading people isn’t going to strike most Americans as smart or principled.

I believe Obama’s orders have created a constitutional crisis, but it is not one that can be resolved by budget maneuvers. Nor are the courts likely to follow Hanen’s lead and stop Obama in his tracks, as they ought to do. In the end the only way the president’s extralegal measures can be overturned is by the voters in November 2016. Until then, Republicans would do well to avoid falling into traps set for them by the White House and their media allies.

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Jeb Doubles Down on Challenging GOP Base

Anyone who thought that Jeb Bush was kidding when he made noises late last year about challenging his party’s base while running for its presidential nomination better think again. In a speech given yesterday in San Francisco, Bush reaffirmed his support for immigration but also made clear that he believed, “We need to find a path to legalized status for those who have come here and have languished in the shadows.” But while Bush was staking out a centrist position on immigration, most of the other potential Republican candidates were in Des Moines attending the Iowa Freedom Summit where they were coming down on the opposite side of that issue as well as the Common Core education curriculum that Bush also supports. The juxtaposition of these two events again raises the question whether anyone, even someone as talented as Bush, can win by flouting the sentiments of most of his party’s activists.

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Anyone who thought that Jeb Bush was kidding when he made noises late last year about challenging his party’s base while running for its presidential nomination better think again. In a speech given yesterday in San Francisco, Bush reaffirmed his support for immigration but also made clear that he believed, “We need to find a path to legalized status for those who have come here and have languished in the shadows.” But while Bush was staking out a centrist position on immigration, most of the other potential Republican candidates were in Des Moines attending the Iowa Freedom Summit where they were coming down on the opposite side of that issue as well as the Common Core education curriculum that Bush also supports. The juxtaposition of these two events again raises the question whether anyone, even someone as talented as Bush, can win by flouting the sentiments of most of his party’s activists.

Bush wasn’t the only would-be candidate missing in Des Moines. Mitt Romney, who continues to act as if he is ready for a third try for the presidency, was also absent and the presence of the two moderate heavyweights was reportedly noted with scorn by some of those in attendance. But while we’re still a year away from voting in the first-in-the-nation caucus, the decision of Bush to double down on his immigration stand illustrates just how different his approach to the 2016 race is from the rest of the field.

Bush isn’t wrong when he notes that those who are opposed to a path to legalization need to come up with a better answer than deportation (or the tragicomic “self-deportation” idea that helped sink Romney in 2012) for the estimated 11 million illegal immigrants currently in the country. This is a long-term problem that requires a solution that goes deeper than slogans. That is the same attitude that motivated his older brother to make a futile attempt to pass immigration reform in 2005 and led a number of other conservatives (including Senator Marco Rubio, a possible 2016 rival) to support a comprehensive bipartisan immigration bill that allowed for a path to citizenship in 2013. As Rubio learned to his sorrow, most Republicans opposed that position at that time. But while Rubio has backed off, Bush is digging in despite the fact that, if anything, conservative opposition to what most still call “amnesty” has only increased.

While any support for legalization was always going to be an uphill slog among Republicans, two events in the intervening years have made it even more difficult.

The first was the surge in illegal immigration this past summer that threatened at one point to overwhelm the country’s resources as unaccompanied minors flooded over into Texas from Mexico. Though some argued that worsening conditions in Central America was the primary motivation for what happened, it was also clear that pro-amnesty rhetoric from President Obama and other prominent figures on both sides of the aisle had raised unreasonable expectations among potential illegals. This convinced Rubio and many other pro-reform politicians and pundits (such as myself) that the comprehensive approach of the Senate bill was wrong. The border had to be secured first before any consideration should be given to amnesty.

But far more important, at least as far as the discussion about this issue among Republicans was concerned, was President Obama’s decision to grant de facto amnesty to up to five million illegals via executive orders last month. This decision offended many that might otherwise agree with both the president and Bush that a solution must be found for the illegals. It raised the specter of one-man rule and ignored the Constitution with respect to the right of Congress to pass the laws of the land. One may try, as Bush will, to treat this as a separate issue from that of immigration reform. But, thanks to Obama, the two are now inseparable. One can’t talk about a path to legalization anymore without, in the same breath, acknowledging that Obama’s extra-legal moves have fundamentally altered the debate. That makes it even more difficult to advocate more amnesty, as Bush is doing, without it making it appear as if he is on the same side as Obama. That may be unfair but that is the way the issue will be framed and the former Florida governor is too experienced a political hand to expect anything different.

Much of the liberal mainstream media may believe opposition to amnesty will make it impossible for Republicans to ever win another national election. But while the Hispanic vote is a major factor, the rest of the country is unhappy with amnesty and illegal immigration in a way that can swing many working and middle-class voters of all races to the GOP. Bush is assuming he’s on the right side of history with his stance but Obama may have permanently altered the political landscape on this question in a way that makes his position less saleable among all voters and poison for Republicans.

Bush has other problems besides immigration and Common Core. Romney’s decision to jump in eliminates the possibility that he can monopolize the establishment vote. New Jersey Governor Chris Christie’s seeming determination to run (he deserves credit for showing up in Iowa despite his unpopularity among conservatives) also complicates things for Bush. He has great assets too, including a famous name, a conservative record as governor, a thoughtful approach to the issues, and the ability to raise all the cash he needs. Bush may also believe the altered primary and caucus schedule and rules in 2016 will benefit him. But his fate will hang more on the validity of his thesis that you can win by running against the base than anything else. If he can pull it off, it will make history and put him in a great position to win the general election against the Democrats. But count me as one of those who will believe it is possible after I see him do it and not before.

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Want to Reverse Obama’s Amnesty Orders? Elect a GOP President.

Yesterday, the House of Representatives acted to defend the Constitution. It passed a bill funding the Homeland Security Department that included provisions that will ensure that the government will enforce immigration laws and prevent it from carrying out President Obama’s executive orders granting amnesty to millions of illegal immigrants. House conservatives can now say they have voted to protect the rule of law against a president determined to act on his own authority in contravention to his constitutional obligations. But if this bill has little chance of surviving a Democratic filibuster in the Senate or of obtaining a veto-proof majority in both Houses if it should make it to the president’s desk, the question remains what exactly can Republicans do to restrain the president’s lawless behavior? The answer for both House Speaker John Boehner and his more conservative critics is: not much.

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Yesterday, the House of Representatives acted to defend the Constitution. It passed a bill funding the Homeland Security Department that included provisions that will ensure that the government will enforce immigration laws and prevent it from carrying out President Obama’s executive orders granting amnesty to millions of illegal immigrants. House conservatives can now say they have voted to protect the rule of law against a president determined to act on his own authority in contravention to his constitutional obligations. But if this bill has little chance of surviving a Democratic filibuster in the Senate or of obtaining a veto-proof majority in both Houses if it should make it to the president’s desk, the question remains what exactly can Republicans do to restrain the president’s lawless behavior? The answer for both House Speaker John Boehner and his more conservative critics is: not much.

That’s not the answer Tea Party activists and other members of the GOP base want to hear. The idea that the ability of Boehner and other Republican congressional leaders to restrain the president is limited, even now that the Senate is in their hands, seem inexplicable to many who believe that the only thing lacking in the Republican caucus is the will to take on Obama. But the more you map out the possible scenarios facing Republicans seeking a legislative fix to the president’s executive orders, not even a shutdown of DHS will halt the amnesty project. If that is true, and unfortunately it is, then at some point the GOP will have to concede at least temporary defeat and move on to other issues even if that will leave at least part of the base damning them as RINO weaklings.

The congressional math on the immigration tangle isn’t hard to figure out. Though Senate Majority Leader Mitch McConnell would probably like to pass the House bill, he may not have the votes to prevent a filibuster by Democrats seeking to defend the president’s prerogatives even if he could count on all 54 Republicans to vote with him, which he can’t. Even if he could get cloture and pass the bill, neither McConnell nor Boehner can muster the supermajorities needed to override such a veto. At that point, the only alternatives involve actions that will lead the GOP into a government shutdown scenario that will only hurt them and help Obama. Even worse, since the agencies that will administer the president’s amnesty plans run on fees collected from the illegals and other immigrants, even that wouldn’t stop the orders from being carried out.

This is frustrating for Republicans and not just because it will leave some conservatives wondering what the point was of electing GOP majorities if they can’t get their way on an issue that hinges on protecting the regular constitutional order by which the legislature passes laws that the executive branch must then enforce.

The strength of the Republican position is that it is defensible regardless of whether you agree or disagree with the president’s policy goals. For a president to simply order a government agency to stop enforcing legally binding laws sets a dangerous precedent. So, too, does the spectacle of a president unilaterally declaring his right to make as well as enforce laws simply because Congress didn’t do as he asked.

But even if you think the broken immigration system must be reformed and a solution found for the 12 million illegals already here and who are unlikely to be all deported, the prospect of Homeland Security simply stopping enforcement is dismaying. Though many of those threatened with deportation are sympathetic, such as the illegals profiled today by the New York Times, the idea that laws can be ignored with impunity, either by immigrants or the president, undermines the notion that we are a nation of laws not men.

This is a battle worth fighting. But it must be acknowledged that picking fights, even righteous ones, that you can’t win isn’t smart.

To those who ask what was the point of electing a Republican Senate if Obama is to get his way, the only answer is that if you are going to eventually reverse the president’s orders, it will have to include electing a president as well as GOP congressional majorities. Only a Republican president, elected in part by the outrage many Americans will feel about their laws being trashed, can roll back the damage Obama is doing to the fabric of our democracy.

The groundwork for that reversal of fortune will also have to involve a Republican Congress behaving sensibly and showing that the party can govern constructively while seeking wherever possible to push back against Obama’s imperial instincts. That will not satisfy those who declare that the republic won’t survive another two years of the Obama presidency. But policy based on apocalyptic predictions is neither a sober party platform nor a strategy for victory. Republicans have made their statement about immigration. Once their gambit fails, like it or not, they will have to move on and prepare the groundwork for the defeat of Hillary Clinton.

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Obama’s Executive Memoranda Highlights Constitutional Crisis

When conservatives protested President Obama’s attempt to go around the Constitution and rule by executive orders rather than with the consent of Congress, his defenders had a ready answer. While they insisted that Obama’s fiat granting amnesty to five million illegal immigrants did not exceed his authority, they also countered by saying that the president had actually issued far fewer such executive orders than that of President Bush. But, as USA Today noted last week, focusing only on executive orders while ignoring the far more numerous executive memoranda issued by this administration that have the same effect as law, the press and the public have vastly underestimated the extent of how far he has stretched the boundaries of executive power. If anything, this president’s effort to create a one-man government may have gone farther than we thought.

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When conservatives protested President Obama’s attempt to go around the Constitution and rule by executive orders rather than with the consent of Congress, his defenders had a ready answer. While they insisted that Obama’s fiat granting amnesty to five million illegal immigrants did not exceed his authority, they also countered by saying that the president had actually issued far fewer such executive orders than that of President Bush. But, as USA Today noted last week, focusing only on executive orders while ignoring the far more numerous executive memoranda issued by this administration that have the same effect as law, the press and the public have vastly underestimated the extent of how far he has stretched the boundaries of executive power. If anything, this president’s effort to create a one-man government may have gone farther than we thought.

As of last week, Obama had issued 198 executive memoranda alongside 195 executive orders. That’s 33 percent more than Bush issued in his full eight years in office and 45 percent more than Bill Clinton. That blows a huge hole in the defense of Obama’s use of executive orders. Seen in this light, rather, as he and his media cheering section have contended, Obama has far exceeded the resort to unilateral measures of not only his immediate predecessor, but every one before that as well.

As USA Today explains, like the orders, memorandums have the force of law and don’t require the consent of Congress. Obama’s memoranda have run the gamut from the creation of new kinds of retirement savings plans, having the Labor Department require federal contractors to supply specific information to the government, forcing borrowers to cap student loan payments, three post-Sandy Hook shooting gun control measures as well as two memos that complimented his immigration amnesty orders.

That last point is crucial because the implementation of amnesty is largely being carried out by executive memorandums rather than orders. They also have the advantage of not being numbered in the Federal Register, as are executive orders. That makes it harder for Congress, the press and the public to keep track of them.

But lest you think it is a mistake to treat the memorandums as being as potent as the far more publicized orders, don’t rely on the authority of USA Today or Commentary. Ask one of President Obama’s appointees to the U.S. Supreme Court. In 1999, Justice Elena Kagan, who served as Associate White House Counsel in the Clinton White House, wrote in the Harvard Law Review that legal scholars made a mistake in focusing too much on executive orders while ignoring the memoranda.

Kagan said Clinton considered memoranda “a central part of his governing strategy,” using them to spur agencies to write regulations restricting tobacco advertising to children, allowing unemployment insurance for paid family leave and requiring agencies to collect racial profiling data.

“The memoranda became, ever increasingly over the course of eight years, Clinton’s primary means, self-consciously undertaken, both of setting an administrative agenda that reflected and advanced his policy and political preferences and of ensuring the execution of this program,” Kagan wrote.

When you consider how many more memoranda Obama has issued than Clinton, it makes Justice Kagan’s insight into how they can be used as a governing strategy even more important.

In practice, the memos are clearly executive orders by another name with no real difference. Even before Barack Obama had become president, they constituted a legal loophole that helped make an already increasingly imperial presidency even more powerful. But under Obama that problem has grown far worse.

The immigration overreach rightly scandalized many Americans not only because of the scope of the orders that were issued but because they represented an end run around the checks and balances that were put into the Constitution by the founders specially to avoid one man rule. One didn’t need to disagree with the president’s actions to understand that the process he was using represented a dangerous departure from the rule of law. But what few seem to understand is that the orders are only the tip of the imperial iceberg when it comes to President Obama’s effort to govern without having to wait for Congress to adopt the laws he wants them to pass. The outrage over the immigration orders is no tempest in a teapot. The president’s increased use of executive memoranda as well as orders ought to highlight a problem that might properly be termed a constitutional crisis rather than a mere partisan spat.

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Obama’s Still In Charge But Also Still Failing

President Obama used the opening statement for his end of year press conference to boast of his achievements even if many of the questions revolved around his lackluster response to the North Korean cyber terror attack on Sony. But the main theme of most of the coverage of the president today centered on the theme that he has responded to his party’s landslide defeat in the midterm elections by seeking to revive his presidency with unilateral actions. These initiatives, such as his opening to Cuba and executive orders on immigration show he’s still in charge and capable of using his power and establishing his legacy despite the opposition of Congress and even the majority of Americans. But while the mainstream media is applauding the signs of life out of White House that appeared dead in the water last month, this recent surge of activity should not be mistaken for policy success. Though any president has the ability to act whenever he wants, the same failures that have dogged him during his first six years in office haven’t disappeared.

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President Obama used the opening statement for his end of year press conference to boast of his achievements even if many of the questions revolved around his lackluster response to the North Korean cyber terror attack on Sony. But the main theme of most of the coverage of the president today centered on the theme that he has responded to his party’s landslide defeat in the midterm elections by seeking to revive his presidency with unilateral actions. These initiatives, such as his opening to Cuba and executive orders on immigration show he’s still in charge and capable of using his power and establishing his legacy despite the opposition of Congress and even the majority of Americans. But while the mainstream media is applauding the signs of life out of White House that appeared dead in the water last month, this recent surge of activity should not be mistaken for policy success. Though any president has the ability to act whenever he wants, the same failures that have dogged him during his first six years in office haven’t disappeared.

There’s no doubt that those who were completely writing off the president’s ability to influence events after the beating Democrats took were exaggerating. Though his policies, which he said were on the ballot, were repudiated, Congress in the hands of Republicans and his personal favorability ratings continuing to head south, the president remains the most powerful man in the world. With the vast power of the federal government at his disposal and no limits on his ability to act, save those specifically charted out by the Constitution and Congress, any president can dominate any news cycle or make a wide variety of decisions that can not easily be reversed by either the legislature or the judiciary.

Moreover, unlike some of his predecessors, Obama’s personality is such that he views checks on his actions, whether in the form of Congressional action or the verdict of the ballot box, as challenges to be met rather than judgments that must be respected. Just as this is a top-down administration in which the Cabinet acts as a body of sycophants and middlemen rather than advisors, this is not a president who listens to advice or criticism that doesn’t conform to his original ideas. It should therefore come as no surprise that now that he is faced with a Congress controlled by his opponents, Obama should come to the conclusion that Constitutional boundaries should be ignored in his zeal to do, as he likes.

But his ability to act on his own should not be mistaken for actual policy successes.

On immigration, the president has finally done what some of his supporters wanted in terms of granting amnesty to more than 5 million illegal aliens and there is very little that is effective that his critics can do about it.

On Cuba, the new Congress can block funding for a new embassy in Havana, refuse to lift the embargo or confirm a new ambassador. But much of the new opening to the despotic regime will go one no matter what Congress says.

Looking ahead to other possible presidential actions, if he makes enough concessions and the Iranians are feeling generous, Obama may get a nuclear deal with the Islamist state. That, too, will be interpreted as a sign of life in what would otherwise be considered a lame duck presidency.

But none of this will change the fact that Obama’s ideological fixation with outreach to tyrants has not made the world better or increased America’s security or influence. To the contrary, with ISIS on the rise in the Middle East, Iran successfully challenging for regional hegemony via its successes in Syria, its alliance with Hamas and its intimidation of moderate Arab nations, and likely to gain U.S. acquiescence to it becoming a nuclear threshold state, Obama is leaving the world a more dangerous place than when he entered the White House. Nor will his Cuban gambit make the island a more democratic or free place.

On domestic policy, his admirers cite his immigration executive orders as a sign that he can govern despite the opposition of Congress. But by acting in this extralegal fashion, Obama has actually doomed for the foreseeable future any chance of working out a compromise with Republicans to pass some kind of immigration reform. Flexing his muscles in this fashion and showing his contempt for the law has convinced even many moderate Republicans that he can’t be trusted to enforce any legislation that he doesn’t like or benefit from. Nor will the problems that he postponed in the implementation of ObamaCare but which will begin to be felt in 2015 do much to bolster confidence in his judgment or the wisdom of his efforts.

So while the last month has been full of presidential sound and fury, these actions only mask a deeper malaise that won’t be fixed by Obama’s characteristic hubris about his actions. The failures of his first six years still hang over this presidency and are why he remains deeply unpopular. He will retain the ability to impact the country until the moment his successor takes the oath of office. But no one should mistake this flurry of activity for presidential success. As the months wind down in what he termed today the fourth quarter of his time in the White House, Obama will be relevant but his failures will continue to haunt the nation and cloud his legacy.

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Dem Civil War and Demographic Destiny

Coming as it did on the eve of the Thanksgiving holiday, I don’t think enough attention was paid to Senator Charles Schumer’s National Press Club speech last week that lamented the Democratic Party’s decision to expend all of its capital on passing ObamaCare in the wake of their 2008 victory. Schumer said that rather than addressing a problem that affected a relatively small percentage of the public, the Democrats should have used the two years when they controlled the presidency and both houses of Congress focusing on measures that would have increased employment and helped the middle class. If you think that sounds like sour grapes in the wake of a midterm elections drubbing, you’re right. But Schumer is hinting at something more serious than second thoughts about an unpopular piece of legislation. He and other liberals are only just beginning to realize that rather than riding demographics to certain triumph in the future, Democratic alienation of white working class and middle class voters may snatch defeat from the jaws of victory.

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Coming as it did on the eve of the Thanksgiving holiday, I don’t think enough attention was paid to Senator Charles Schumer’s National Press Club speech last week that lamented the Democratic Party’s decision to expend all of its capital on passing ObamaCare in the wake of their 2008 victory. Schumer said that rather than addressing a problem that affected a relatively small percentage of the public, the Democrats should have used the two years when they controlled the presidency and both houses of Congress focusing on measures that would have increased employment and helped the middle class. If you think that sounds like sour grapes in the wake of a midterm elections drubbing, you’re right. But Schumer is hinting at something more serious than second thoughts about an unpopular piece of legislation. He and other liberals are only just beginning to realize that rather than riding demographics to certain triumph in the future, Democratic alienation of white working class and middle class voters may snatch defeat from the jaws of victory.

Schumer’s political analysis is must reading for both conservatives and liberals. Though he insists that tackling health care was a good idea in principle, he points out that although the plight of uninsured and rising health-care costs are important problems, 85 percent of Americans were getting their insurance from either their employers or the government (via Medicare or Medicaid). Since most of the uninsured are either not registered or don’t vote even if they are:

To aim a huge change in mandate at such a small percentage of the electorate made no political sense. So when Democrats focused on health care, the average middle-class person thought, the Democrats are not paying enough attention to “me.”

But Schumer shouldn’t have stopped with his second-guessing of the misnamed Affordable Care Act. The same argument can be made about President Obama’s executive orders mandating amnesty for five million illegal immigrants.

Though this measure is assumed, with reason, to be popular among Hispanic voters, the notion that it will ensure their monolithic support for Democrats in the future is a theory, not a certainty. But even if we are prepared to make that assumption, by investing so heavily in a measure that is focused on appealing only to minorities and which, at the same time, has the potential to alienate large numbers of working class and middle class voters who worry about the nation’s inability to control its borders and intensely dislike the president’s end run around the Constitution to accomplish this goal, they increased their demographic weakness in other areas.

Republicans have spent the years since their 2012 loss in the presidential election pondering their problems with Hispanics, African-Americans, unmarried women, and young voters. The ensuing debate has created an ongoing argument between those who urge greater outreach to these constituencies and those who believe the GOP has to concentrate on mobilizing its base. One needn’t choose either option to the exclusion of the other, but this discussion has become a keynote of the simmering conflict between the party establishment and its Tea Party and conservative base.

But while the mainstream press has obsessed about this Republican civil war, it ignores the looming battle among Democrats. That civil war pits people like Schumer, who may be hardcore liberals but understand that ideological policies carry a hefty price tag, against left-wingers like Senator Elizabeth Warren, who appears to speak for the Democratic base in the same way that Ted Cruz represents Tea Partiers. Democrats paid the price that Schumer spoke of in the form of two midterm election landslides even if Barack Obama’s historic status and personal popularity enabled them to hold onto the White House in 2012.

The two presidential wins interspersed with two midterm losses has led many pundits and politicians on both sides of the aisle to conclude that the two parties are fated to continue this pattern because of the larger turnout of Democratic constituencies in presidential years. That has led many to embrace the notion that demography is destiny, which holds that the increasingly larger share of votes cast by non-whites will not only ensure that the pattern continues but that Republicans will never again win the presidency until they become more attractive to minorities. That’s not an idea that the GOP should ignore, but it may be that the Democrats’ decision to embrace policies that alienate a far larger group—white middle class and working class male voters—will be as much of handicap in 2016 as it was in 2014.

All indications are that, like that ultimate weathervane Hillary Clinton, many Democrats prefer to follow Warren’s example and steer to the left. That may endear them to minorities as well as their liberal base. But in doing so they may be the ones dooming themselves to future disasters, not Republicans who understand that so long as they avoid looking foolish or extreme they are well positioned to reap the benefits of opposition to both ObamaCare and amnesty for illegals. Having spent the last six years branding their opponents as extremists, it seems Democrats have forgotten that the same problem exists on the left as it does on the right.

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Pass an Immigration Bill? What’s the Point?

Republicans are still fulminating about last week’s presidential power grab, and with good reason. President Obama’s executive orders granting legal status to 5 million illegal immigrants were contrary to proper constitutional order as well as the will of an American people that had just issued a rebuke to his policies and his party in the midterm elections. But the onus right now seems to be on the GOP to come up with a coherent response to the president on immigration, whether a strategy to push back on his orders or on the issue itself. In particular, the president has challenged Republicans to “pass a bill” if they don’t like what he’s done. But while that sounds logical, the president’s actions are nothing more than a partisan trap. By effectively neutering the rule of law via mass “selective prosecution,” what Obama has done is to vindicate the positions of the most extreme opponents of immigration reform.

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Republicans are still fulminating about last week’s presidential power grab, and with good reason. President Obama’s executive orders granting legal status to 5 million illegal immigrants were contrary to proper constitutional order as well as the will of an American people that had just issued a rebuke to his policies and his party in the midterm elections. But the onus right now seems to be on the GOP to come up with a coherent response to the president on immigration, whether a strategy to push back on his orders or on the issue itself. In particular, the president has challenged Republicans to “pass a bill” if they don’t like what he’s done. But while that sounds logical, the president’s actions are nothing more than a partisan trap. By effectively neutering the rule of law via mass “selective prosecution,” what Obama has done is to vindicate the positions of the most extreme opponents of immigration reform.

The genius of Obama’s amnesty for illegals via executive orders is not that he has somehow championed the underdog or ensured the Hispanic vote for the Democrats for generations to come, as many Democrats are saying. The orders, which can be reversed if the GOP wins back the White House in 2016, won’t permanently change anything for the illegals. And Hispanics weren’t flipping to the Republicans even if the House had passed the Senate immigration reform bill last year. What the orders have done though is dashed the House and Senate GOP leadership’s hopes for setting a governing agenda by making bipartisan cooperation a toxic phrase in the majority caucuses next year. While there may be deals to be made on trade, taxes, or the use of force in the Middle East, Obama has ensured that much of the Republican Party’s energies will be wasted on futile attempts to stop his unilateral immigration policies. Even more to the point, immigration reform is dead on arrival for the next two years.

It should be remembered that Republicans were divided on immigration in the Congress that is just reaching the end of its term. A significant faction in the Senate backed the comprehensive bipartisan reform bill passed by the upper body. There were significant numbers in the House GOP caucus that favored tackling border enforcement even if the majority wanted no part of the Senate bill.

Opponents of even going that far had two standard replies to those favoring such measures. The first argued that any deal promising a free pass to illegals already here would generate another surge of illegals coming in. The second said that it was impossible to trust President Obama to actually carry out border enforcement measures if his real agenda here rests with granting legal status to illegals.

In response, reform advocates made points about the current problem being de facto amnesty and pointed to the advantages of strengthening the border and then dealing with the issue of those already here.

Those opposing immigration reform are wrong in terms of the big picture since this is an issue that requires attention and legislation to deal with a problem that won’t go away by itself. But they were right about both the impact of amnesty and the president’s reliability on enforcement. Last summer’s surge of illegals at the Texas border put to rest the notion that there is no connection between talk of granting amnesty and the rate of illegal entries. That is true even if Obama’s measures wouldn’t actually apply to those coming over the border. And now that Obama has single-handedly eviscerated the notion that the rule of law applies to immigration matters, he has handed reform advocates an irrefutable argument that any legislation on the matter is impossible since the president has no credibility on enforcement matters.

Even more to the point, Obama has placed Republican leaders in the position where they must respond to his end run around the Constitution even though there is little likelihood that anything, whether a lawsuit or even selective funding cutoffs that will impact the government’s ability to carry out the amnesty plan (though this is the most promising idea), will stop him from doing whatever he likes until January 2017. That will allow the White House and its media cheering section to label the new Congress as a pack of obstructionists even if the president is the one who has needlessly provoked the argument by going back on his past promises to refrain from acting like an emperor rather than a president.

Thus, the president’s challenges to “pass a bill” aren’t merely unpersuasive. Rather than an effort to prompt needed legislation, they are taunts that are actually intended to foment more obstruction and partisan warfare.

Those who know the country needs a legislative remedy to a broken immigration system knew that the odds were against success even before the president’s moves. But by acting in this manner he has made it certain that no such efforts can possibly succeed in the next Congress and also silenced those who tried to answer the arguments of those opposed to reform. The appropriate response to “Pass a bill” is that the president should try enforcing the law first. Obama has not only damaged the cause of immigration reform, he has done something that seemed impossible a couple of years ago: made anti-immigration advocates look smart.

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Standing and Prosecutorial Discretion

There has been much talk of late, especially since President Obama’s speech last night, about how the new Republican congress can respond to his continual, indeed increasing, end runs around Congress’s power to make the laws. In almost so many words last night, he said to Congress, you didn’t reform immigration law so I will.

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There has been much talk of late, especially since President Obama’s speech last night, about how the new Republican congress can respond to his continual, indeed increasing, end runs around Congress’s power to make the laws. In almost so many words last night, he said to Congress, you didn’t reform immigration law so I will.

He used the common law principle of prosecutorial discretion—where the executive can choose what individual crimes to pursue and which to ignore—to do so. He was confident that the common law principle of standing—where an individual, corporation, or government body must have a personal or direct injury that he or it wants redressed in order to sue—would prevent the courts from interfering.

It’s clever lawyering if lousy politics.

The courts have long held that individual members of Congress cannot sue the president for ignoring the law.  It may get them a headline in tomorrow morning’s newspaper, which is what they are usually after anyway, but it won’t get them far in court.  Equally, prosecutorial discretion has always been used to allow prosecutors to choose strong cases to pursue, while letting weak ones go, or to prevent an injustice from occurring by pursuing the letter of the law.

But, as noted, both standing and prosecutorial discretion are largely common law principles, arising from centuries of court decisions on how justice should be done, guarded by the doctrine of stare decisis, which holds that settled principles of law should not be disturbed by the courts when deciding similar cases.

But statute trumps common law. It was common law that the age of majority was 21. But that didn’t prevent the states from making 18 the age at which, for instance, individuals could drink or marry without a parent’s permission or vote.  A constitutional amendment set the voting age at 18 nationwide.

So, while I am not a lawyer, I see no reason why the new Republican Congress could not pass a law granting itself standing to sue when it decides by majority vote that the President has trespassed on its power to make the law. Equally, it has the power to limit prosecutorial discretion to its traditional uses.

After all, President Obama was implicitly arguing in his speech last night that if Congress were to pass a law making, say, the transportation of widgets across a state line a felony, he would be free to order the Justice Department not to prosecute any cases under the Widget Law, effectively repealing it.

Defining standing and prosecutorial discretion by statute would prevent this usurpation of power.  Would President Obama veto such bills? Perhaps, but even with the mainstream media in look-a-squirrel overdrive, I think public pressure would force him to accept them.  If it didn’t, then a future president who thinks that James Madison is not just a dead white guy would.

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Obama’s Orders: Politics, Not Compassion

President Obama was at his rhetorical best Thursday night in making an eloquent case for his executive orders that allow five million illegal immigrants to avoid deportation. But his eloquence invoking compassion for immigrants was the worst kind of cynical game being used to justify an unprecedented presidential usurpation of power. Even if one accepted the arguments he employed on behalf of fixing our broken immigration system or being fair to illegals, it was all beside the point. The purpose of this exercise was to vastly expand the scope of presidential power while provoking a confrontation with Republicans. None of it had much to do with actually changing the system.

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President Obama was at his rhetorical best Thursday night in making an eloquent case for his executive orders that allow five million illegal immigrants to avoid deportation. But his eloquence invoking compassion for immigrants was the worst kind of cynical game being used to justify an unprecedented presidential usurpation of power. Even if one accepted the arguments he employed on behalf of fixing our broken immigration system or being fair to illegals, it was all beside the point. The purpose of this exercise was to vastly expand the scope of presidential power while provoking a confrontation with Republicans. None of it had much to do with actually changing the system.

There are good reasons to support changes in the system. The status of the 11 million illegals in this country needs to be resolved in some rational manner. The president is right to state that mass deportations are both unlikely and undesirable. Even if they violated the law, many, if not most of the illegals are not bad people and some of their stories should inspire compassion from Americans.

But by acting unilaterally rather than returning to the hard work of crafting a bipartisan compromise on immigration with the new Republican majorities in Congress, Obama showed that he had other motives besides his supposed passion for the illegals.

The president’s argument remains that he is being forced to act because House Republicans refused to pass the bipartisan compromise bill passed by the Senate. This is a specious appeal for four reasons.

The first is that even if the Senate bill deserved support, it is the prerogative of the Congress to pass laws. The president may advocate, lobby, cajole, threaten, or bargain with members to get his way. But if the executive branch fails to get the legislative branch to approve measures, it must accept the verdict and try again. Such a failure does not grant the president the right to usurp Congress.

Second, this is no emergency that required immediate action. Comparisons to the Emancipation Proclamation or wartime emergency measures are absurd. If it were a genuine emergency, Obama would have acted on it during his first two years in office when he had Democratic majorities in both houses of Congress and could have gotten any measure he liked. He might also have issued these orders at any time since then but instead waited until he was safely reelected and then for the midterms to be finished before acting.

Third, seen from the perspective of November 2014, it is clear the House was right not to pass the Senate bill. Though I did not think so at the time, the impulse to break up the measure and to pass border security legislation first and then and only then consider the future of the illegals already here was correct. Despite the president’s claims that the border is secure, last summer’s surge of illegals proved otherwise. Moreover, his boasts about the supposed decline in illegal immigration has little to do with the still shaky enforcement at the border and everything to do with the shaky economic recovery the president has presided over. Even worse, it is likely that today’s temporary amnesty—which may be reversed by the next president—will encourage another such surge. The same thing happened after President Reagan’s amnesty and that was not nearly so egregious as Obama’s and an attempt to clarify a law passed by Congress, not an end run around the Constitution.

Fourth, if, as he says, he wants a new bill, the only way to achieve any kind of reform would have been to work with the new Congress. Chances were admittedly slim for a new compromise but the president’s orders have now reduced it to zero. Hispanics and immigration-reform advocates applauding these orders should think about the fact that with a stroke of a pen, Obama has made it impossible for any Republican, no matter how committed to fixing the system, to vote for a new bill in the next two years. That is a greater setback for that cause than anything done by House Republicans in the past two years.

And that leads us to the most important conclusion to be drawn from the president’s move. It must be understood that this is as much a tactical political move as it an attempt to build a legacy as some of the president’s defenders claim.

By issuing his orders now in the wake of the Democrats’ drubbing in the midterms, Obama is attempting to take back the initiative from a victorious GOP. Despite the pious rhetoric he used about bipartisanship, his goal here is to goad a rightly furious Republican caucus into overreacting and to recreate the government shutdown confrontation of 2013 that he rightly believes himself to have won. In doing so, he hopes, with the help of a partisan liberal media that is already happily defending his measures and lambasting conservative anger, to gain an advantage in the latest episode of the pointless partisan squabbling that he has helped to engender.

By going outside of the constitutional order in this manner, the president has created a dangerous precedent that undermines both the rule of law and the concept of separation of powers. One may even agree with the substance of his ideas while also understanding that this is a radical action that puts more power in the hands of an already too-powerful executive branch.

But the fact that Democrats are already seeking to depict this struggle as one between a compassionate president and Republicans who want “ethnic cleansing” illustrates that this merely politics, not principle at play. Those who hoped they were electing a Congress to get things done were not wrong to think the new majorities had an opportunity to legislate. But President Obama has made that impossible by firing the first shot in a political war intended to further polarize the nation. Nothing could be more cynical or less high-minded.

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A Lawless Presidency Will Destroy Itself

There is no longer any doubt that perhaps within a matter of days, the president will issue executive orders that grant amnesty to up to 5 million illegal immigrants currently in the United States. While the administration is hoping the discussion that ensues will still be about the merits of immigration reform, they should understand that the president’s decision to use his executive authority to treat law enforcement as a function of his personal whim is bound to change the debate to one about an assault on constitutional principles. This means that rather than debating what can be done to stop him in the short term (the correct answer is not much), observers should be pondering the long-term effects of this move on both the future of immigration reform and the fortunes of our two political parties. The answers to both of these questions may not bring much comfort to the president and his supporters.

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There is no longer any doubt that perhaps within a matter of days, the president will issue executive orders that grant amnesty to up to 5 million illegal immigrants currently in the United States. While the administration is hoping the discussion that ensues will still be about the merits of immigration reform, they should understand that the president’s decision to use his executive authority to treat law enforcement as a function of his personal whim is bound to change the debate to one about an assault on constitutional principles. This means that rather than debating what can be done to stop him in the short term (the correct answer is not much), observers should be pondering the long-term effects of this move on both the future of immigration reform and the fortunes of our two political parties. The answers to both of these questions may not bring much comfort to the president and his supporters.

The GOP-controlled Congress doesn’t appear to have legislative options that won’t involve funding measures that can be portrayed as a new government shutdown. Though it would take presidential vetoes to kick off such a confrontation, with the help of a still docile mainstream media (see Grubergate), Republican leaders understand that this is a political trap they need to avoid. However, what Democrats who assume the mass amnesty will transform the political landscape in their favor and doom Republicans to perpetual defeat are ignoring is that the executive orders will change the terms of the debate about this issue. Though there may be no way of rescinding these orders while Obama remains in office, the real political trap may be the one that the president’s arrogant assumption of unprecedented personal power may be setting for his party.

As for the justification for this action, the notion that the president must act because Congress has not done so is utterly unconvincing even for those who support the cause of immigration reform.

The presence of an estimated 11 million illegals within our borders is a problem that must eventually be dealt with in a sensible manner. Mass deportations are neither feasible nor desirable, especially with those targeted by the president’s orders that may have children or other family members who are either citizens or legal residents. It is also true that many Republicans that supported the bipartisan immigration compromise that passed the Senate last year signed on to a process that would have given illegals a path, albeit a difficult one, to citizenship.

However, the need to address the problem doesn’t justify the president’s stand.

A measure that is imposed outside of the law that is not directly tied to border security and a reform of a broken immigration system does not solve the problem. If anything, as we saw last summer, such measures only encourage more illegal immigration. That surge of illegals proved that critics of the bipartisan bill were right and those of us (including me) who supported it were wrong. The border must be secured first and then and only then will it be possible to start sorting out those who are still here without permission. That was the approach favored by many in the House of Representatives last year and a new attempt at a fix to the problem should start there rather than trying to resurrect the Senate bill as the president demands.

That is why the administration’s narrative about the executive orders is simply false. Far from the president stepping in to provide a solution where Congress failed, what he is doing is making the problem worse, not better.

Far worse is the manner in which he is doing it.

It is, strictly speaking, within the president’s lawful authority to direct agencies operating under him to exercise prosecutorial discretion. But to do so on a mass scale isn’t merely unprecedented. It breaks new ground in the expansion of executive authority. As much as the president thinks the current law is inadequate to deal with the problem of illegal immigration, it is not up to him to unilaterally legislate a new solution. Only Congress may re-write the laws of the land. The idea of a president acting unilaterally to invalidate existing statutes in such a way as to change the status of millions of persons, however sympathetic we may be to their plight, places Obama outside the law and blaming Congress for inaction does not absolve him.

Nor can it be justified as falling within the executive’s right to act in a crisis.

There are circumstances when, usually in wartime, a crisis looms and broad presidential discretion is unavoidable. But as much as advocates for the illegals may trumpet their plight, this is not a ticking bomb that requires the normal constitutional order to be set aside. If majorities in both the House and the Senate could not be found to support a measure the president deemed important, he had the normal recourse of going to the people and asking them to elect a Congress that will do so. Unfortunately for those who claim that the president has no choice but to bypass Congress, we have just undergone such an election and the people’s answer was a resounding rebuff to the White House. The president may think it is in his interest to pretend as if the midterms should not determine his behavior in his final two years in office but it was he who said his policies were on the ballot. While there was an argument prior to November 4 that claimed that it was the GOP-controlled House that was thwarting public opinion on immigration, that claim disappeared in the Republican sweep.

That brings us to the long-term political consequences of this act.

While much has been made of the impact of amnesty on the Hispanic vote, with these orders the president is digging Democrats a hole that they will have difficulty climbing out of in the next two years.

Hispanics may be grateful for the temporary end of the deportations but it will not escape their notice that in doing so the president has ended any chance of immigration reform for the rest of his term. Nor will they be unaware that a GOP successor will invalidate amnesty with a stroke of the pen as easily as the president has enacted them. Republicans will rightly understand that there is no dealing with an administration that would rather go outside the law than first negotiate in good faith with a newly elected Congress on immigration. Nor can they be blamed for thinking any deal based on promises on border enforcement will be worthless with a president who thinks he has the right to simply order non-enforcement of the laws he doesn’t like.

Even more to the point, the orders will create a backlash among the rest of the electorate that always results when presidents begin to run afoul of both the law and public opinion. A lawless presidency is something that is, by definition, dysfunctional, and that is a term that has already defined Obama’s second term up until this point. Democrats who are counting on wild applause from their base should understand that just as Republicans learned that domination by their Tea Party wing undermines their electoral viability, they too should be wary of governing from the left.

The spectacle of mass amnesty without benefit of law will shock ordinary voters, including many who are Democrats or who think the immigration system should have been fixed. After the orders, responsibility for the failure to do so will rest on Obama, not the Republicans. What the president may be doing with these orders is to remind the voters that parties that grow too comfortable with exercising authority without benefit of law must be taught a lesson, one that will be paid for by his would-be Democratic successor in 2016. Rather than building his legacy, the president may actually be ensuring that his time in office is remembered more for his lack of respect for the rule of law than any actual accomplishments.

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Dems May Regret Obama’s Immigration Orders

President Obama once again put the country on notice yesterday in his post-midterm election press conference that he will act to legalize millions of illegal immigrants by executive order sometime before the end of the year. Doing so will torpedo any hopes of cooperation with congressional Republicans who will rightly see the moves as an end run around the law that proves his lack of sincerity when he claims he will meet them halfway. But having made it clear that he is unmoved by the notion that the midterm results should induce him to rethink any aspect of his policies, the president will almost certainly finally redeem the promise he made to Hispanic groups to issue the orders. The only questions now are what is he waiting for and whether acting in this manner will help Democrats in the long run.

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President Obama once again put the country on notice yesterday in his post-midterm election press conference that he will act to legalize millions of illegal immigrants by executive order sometime before the end of the year. Doing so will torpedo any hopes of cooperation with congressional Republicans who will rightly see the moves as an end run around the law that proves his lack of sincerity when he claims he will meet them halfway. But having made it clear that he is unmoved by the notion that the midterm results should induce him to rethink any aspect of his policies, the president will almost certainly finally redeem the promise he made to Hispanic groups to issue the orders. The only questions now are what is he waiting for and whether acting in this manner will help Democrats in the long run.

Though immigration reform advocates have been begging him to use the power of the presidency to bypass Congress on this issue for years, the president didn’t promise to do so until this past June when he spoke of issuing the orders by the end of the summer. But embattled red-state Democrats begged him to hold off at least until the election so as to avoid their being tainted by a decision that would have enraged voters. Seeking to help politicians who were his supporters even if they avoided the unpopular president like the plague during the campaign, Obama complied.

This was a mistake since the postponement enraged Hispanics who rightly felt they had been stiffed once again by a president who had chosen not to act on immigration in his first two years in office when Democratic majorities would have given him anything he asked for. This led to a distinct lack of Hispanic enthusiasm for congressional Democrats that helped sink candidates like Senator Mark Udall in Colorado. But far from quieting concerns from the rest of the public, the threat that the president would trash the rule of law in this manner as soon as voters were presumably no longer paying attention only helped generate more support for Democrats. In the end, the president got the worst of both worlds by stalling on amnesty.

But now that the election is over, there really is no political reason to delay further. If Democrats were holding onto the hope that the Louisiana runoff election for Senator Mary Landrieu’s seat could help them retain a majority in the Senate, the president might still be dithering on the issue. But with the Republicans already holding 52 seats after the dust settled on Tuesday (with one more to come from Alaska once those results are finalized), Landrieu’s survival is irrelevant to control of Congress. The president is unlikely to postpone the move to help Landrieu, whose uphill battle in the runoff against Republican Bill Cassidy seems like a hopeless cause. Indeed, it is so hopeless that despite the lack of any other races in which to invest at the moment, the Democratic Senatorial Campaign Committee has pulled the plug on nearly $2 million in television ad buys for her reelection effort.

Thus, the president did not shy away yesterday from making the case for his impending actions even though both Senator Mitch McConnell and House Speaker John Boehner warned him that he was going to “poison the well” of bipartisan cooperation even before such efforts began. In doing so, he returned to his familiar theme in which he said the reason he had to act was Congress’s failure to pass its own immigration reform bill.

This is a theory of democratic governance that defies both logic and the Constitution. The president may regret the failure of the House to pass a bipartisan reform bill that made it through the Senate. But that unwillingness to put that measure into law provides no legal or moral authority for the president to attempt to put one aspect of that bill into law unilaterally. Whether it is wise or not, Congress is under no obligation to pass legislation that it does not support even if that is the president’s wish.

There are reasonable arguments to be made on behalf of a reform of a broken immigration system as well as for doing something to bring the estimated 12 million illegals already in the country under the umbrella of the law. But what the president is planning to do isn’t reform. Nor will it fix the system. If anything, the spectacle of millions of people here in violation of the law being granted permission to stay without benefit of a vote in Congress will only encourage more illegal immigration, much as the president’s past advocacy of such measures helped create the surge of illegals at the border this past summer. The long-term result will only be to render hopes of controlling the border even more illusory.

Will the executive orders recapture Hispanic enthusiasm for the Democrats? Maybe. The assumption is that Republican opposition to amnesty will ensure that Hispanics vote for the Democrats for generations to come. But Hispanics already support the Democrats for a variety of reasons. And with two years to go until the next time the voters go to the polls in a federal election it is just as possible that many will not soon forget the cynical manner in which they were manipulated this year. But let’s assume that the Democratic stranglehold on the Hispanic vote is further strengthened by the president’s decision. What Democrats need to understand is that merely playing to their base and ignoring the rest of the voters can sometimes do as much harm to their cause as it does good.

What happened this year should have made the president and his supporters understand that the spectacle of a porous border undermines support for immigration measures. At this point, even conservatives who supported the Senate bill now realize that their House colleagues may have been right when they insisted that the border had to be secured before anything could be done to deal with the status of those already here illegally. While something needs to be done to fix the system, the border surge made a comprehensive approach politically impossible.

But for the president to now defy both public opinion and the will of Congress by acting on his own will do more than embitter his Republican antagonists. Though it will mollify one part of his coalition, rather than putting the issue to bed this end run around the law will create even more anger in the political grass roots around the country that will ensure that this issue will still be red hot in 2016. As they should have learned this year, it takes more than an energized base of minorities to win elections. Amnesty for the current crop of illegals will bring us more border surges and more damage to the rule of law. Obama may be content with that being part of his legacy, but it will be his fellow Democrats who will still be stuck trying to explain a move that can’t be defended when they go back to the voters in the future.

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Arrogant Obama Has Learned Nothing

Last night as the country was absorbing the midterm election results, the New York Times reported that President Obama was “irritated” about the Democrats’ stunning defeat but that he did not consider the outcome to be a “repudiation” of himself or his administration. In response, some talking heads on the cable news networks suggested that given some time to reflect on events, he would take responsibility for a historic drubbing. They were wrong. When the president came out to face the public at his White House press conference this afternoon, it was clear that not only would he refuse to take blame for his party’s losses but was unchastened by the experience.

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Last night as the country was absorbing the midterm election results, the New York Times reported that President Obama was “irritated” about the Democrats’ stunning defeat but that he did not consider the outcome to be a “repudiation” of himself or his administration. In response, some talking heads on the cable news networks suggested that given some time to reflect on events, he would take responsibility for a historic drubbing. They were wrong. When the president came out to face the public at his White House press conference this afternoon, it was clear that not only would he refuse to take blame for his party’s losses but was unchastened by the experience.

Though the press had wondered what adjective he would use to describe a defeat similar in magnitude to a 2010 midterm election that he dubbed a “shellacking,” his speech writers appeared not to have employed a thesaurus. The most he would say was that “Republicans had a good night.” But this unwillingness to acknowledge the magnitude of the outcome was merely the prelude to a lengthy display of presidential arrogance that made it clear he had no intention of taking the voters’ lack of confidence to heart or changing a thing about a presidency that the majority of Americans no longer regard favorably.

Rather than taking a page from Bill Clinton’s book and understanding that he had to adjust his policies and ideas to political reality, Obama seems to think he has no lessons to learn from the voters who broadly rejected the policies that he told us last month were on the ballot yesterday.

Asked several times by members of the press if he was prepared for genuine compromise, all he gave them was the usual boilerplate he’s been employing throughout his presidency about being willing to listen to Republicans if they come up with reasonable ideas. The only problem with that: he believes the only one with reasonable ideas is Barack Obama.

As for the American people, he dismissed their votes as merely a symptom of restlessness and impatience, not a reasoned assessment of his conduct in office. If there was any conclusion to be drawn from their votes, he took it as a slap at both Republicans and Democrats. As far as he is concerned, what the people want is for Congress to “get stuff done.”

It’s true that Republicans in Congress have favorability ratings even lower than the president’s awful poll numbers. But to claim that the voters took an equally dim view of both sides of the partisan divide is to ignore the results. Democrats took a beating around the country as an anti-Obama backlash tarnished their brand and even some highly unpopular Republicans wound up winning races easily that had been thought to be hard slogs. With his party suffering massive losses in the Senate and the House and even in governor’s races where Democrats suffered from their association with the president, it is simply impossible to honestly assert that what happened was a bipartisan anti-incumbent wave. Instead of a “Seinfeld election” about nothing, it was an anti-Obama six-year itch of historic proportions.

Speaking prior to Obama’s press conference, incoming Senate Majority Leader Mitch McConnell urged the president to work with Republicans and accept the olive branch he was offering. But he also warned him that if he ignored the election results and moved ahead with plans to use executive orders to legalize millions of illegal immigrants, he would be immediately “poisoning the well” and making bipartisan deal-making far more difficult.

Yet that is exactly what Obama seems intent on doing. His attitude about immigration was no different than his stance on every other issue where he differs from Congress: It’s my way or the highway. If a Republican-controlled Congress doesn’t want him doing end runs around their constitutional authority, Obama says their only choice is to pass bills he likes. If not, he will act on his own.

This is the main point of his remarks. Though he spoke at times of being willing to have more drinks or rounds of golf with Republicans or members of Congress—something most presidents understand is part of their job but which Obama regards as being somehow beneath his dignity—the president believes such meetings are merely an opportunity for others to listen to him and learn the errors of their ways. In his view, “getting stuff done” means Republicans passing liberal legislation, not him being willing to agree to some of the GOP agenda.

Listening to Obama discuss the need to accommodate or even listen to critics, it’s easy to see he still thinks of himself as the adult in rooms full of petulant children that an unkind fate has forced him to supervise. Rather than treat opponents as equals who must be met halfway, even after six years of failure with Congress, Obama still seems to believe he is, at worst, a constitutional monarch who must suffer the indignity of hobnobbing with commoners even if he would rather die than relinquish his royal prerogatives.

Though the president did the right thing last night by calling election winners from both parties and scheduling a meeting with congressional leaders on Friday, based on today’s performance there is no reason to think the next two years will be any different from those that preceded them when it comes to Obama working with his opponents.

It is one thing to be undaunted by electoral reversals. It is quite another to pretend that such petty annoyances are unworthy of your attention. Though he was the one who reminded us in January 2013 that “elections have consequences” when he was asked about working with defeated Republicans, this is a president who believes that he doesn’t have to heed the verdict of the voters if it goes against him and his allies. That, and not congressional squabbling, is the answer to the question voters ask about why Washington doesn’t function properly.

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Why Immigration Reform Won’t Pass

President Obama justifies his plans (put off until after the midterm elections) to act unilaterally to legalize millions of illegal immigrants on the grounds that Congress has failed to pass the immigration reform bill he prefers. That’s a risible justification for throwing the Constitution under the bus and bypassing Congress and the checks and balances enshrined by the Founders. But even if we all agreed that reform is needed, rarely does the president or his supporters stop to ask why it is that so many Americans and the House of Representatives oppose their position.

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President Obama justifies his plans (put off until after the midterm elections) to act unilaterally to legalize millions of illegal immigrants on the grounds that Congress has failed to pass the immigration reform bill he prefers. That’s a risible justification for throwing the Constitution under the bus and bypassing Congress and the checks and balances enshrined by the Founders. But even if we all agreed that reform is needed, rarely does the president or his supporters stop to ask why it is that so many Americans and the House of Representatives oppose their position.

An answer comes again today from one of the most visible advocates of changing the system to grant the 11 million illegals currently in the country a path to legal status if not citizenship. Jose Antonio Vargas, a former reporter for the Washington Post who outed himself in the New York Times in 2011 as having come to the United States illegally from the Philippines as a child, writes today in a Politico Magazine article about his decision to symbolically turn himself in to the Department of Homeland Security last month along with ten other undocumented aliens. Vargas believes the system is broken and unjust and is demanding the president not wait a moment before using an executive order to override the will of Congress and stop the deportation of illegals.

If we limit our discussion to the question of a system that doesn’t work and which has been loosely enforced by the government for many years, Vargas has a strong argument. Indeed, the need for reform is clear and that includes some sort of rational solution for the millions of illegals who, like Vargas, are obviously not going to be deported.

But if Vargas and Obama want to know why there is such fierce resistance to some of the proposals, including the bipartisan bill passed by the Senate last year, they need to stop and consider how the mockery of the rule of law implicit in Vargas’s brazen stunts (such as getting himself arrested near the Texas border in July) aimed at pressuring the government to let illegals off the hook undermines their case.

It is one thing to say that those living in the shadows should be brought under the umbrella of the system. It is quite another for Vargas and his colleagues to act as if obeying or enforcing the law is merely an option. Vargas has become not so much the poster child for the arbitrary nature of a law he opposes but a professional illegal immigrant.

That is, in and of itself, something of an affront to the whole concept of law and law-abiding citizens. While he boasts of walking around with a copy of the Constitution in his pocket (which he carries, along with his Philippine passport, for good luck), he fails to recognize that the basis of that document is a belief in the rule of law. Though he writes eloquently of the plight of illegals, he seems to think the fact that they broke the law by entering the U.S. without permission is a mere detail. His attitude is primarily one of entitlement, not martyrdom.

Above all, what Vargas and those who seek to publicize and laud his antics forget is that by treating the law as a thing that can be violated with impunity they are undermining the cause they seek to promote. If, after all, the border can be crossed with impunity, there is no border or law.

It is precisely this sense of chaos that led to the current impasse as well as to this summer’s surge of illegal immigrants and in particular, unaccompanied children, to flood across the border to Texas.

Instead of mocking the increased security present along the Rio Grande or those who ask him and other illegals to leave and then get in line behind those already waiting to get into the country, Vargas should understand that there would never be a critical mass of support for reform until the border is secured. Many erstwhile supporters of the Senate bill have come to the conclusion that any resolution of the plight of the illegals must come after the flow across the border is stopped, not before.

Every publicity stunt which allows illegal immigrants to flaunt their status makes it that much harder for any reform bill to pass. Even more to the point, rather than encouraging Obama to trample on the Constitution, Vargas should realize that the only way to win over House Republicans who believe they are defending the rule of law is to meet them on their own ground. Instead, Vargas and Obama are both sending a clear message to the House that they regard the issue with contempt.

This bodes ill for future efforts at reform. If Obama acts after the election on his own to change the law it will set off years of bitter conflict about the constitutionality of his actions, causing opponents of reform to refuse to listen to future proposals. And so long as Vargas and others treat the law as a joke, it will be hard to blame them.

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Will the GOP Repeat Their Shutdown Error?

In a year in which Republicans were already favored to take control of the Senate, President Obama’s plans to announce executive orders to effectively legalize millions of illegal immigrants may be the last straw for a number of embattled red state Democratic incumbents and challengers. But there is an alternate theory to explain the president’s puzzling decision to trample on the Constitution just weeks before the midterms. It could be that the White House believes this is just the thing to tempt conservatives to overplay their hand and raise the specter of another government shutdown or impeachment.

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In a year in which Republicans were already favored to take control of the Senate, President Obama’s plans to announce executive orders to effectively legalize millions of illegal immigrants may be the last straw for a number of embattled red state Democratic incumbents and challengers. But there is an alternate theory to explain the president’s puzzling decision to trample on the Constitution just weeks before the midterms. It could be that the White House believes this is just the thing to tempt conservatives to overplay their hand and raise the specter of another government shutdown or impeachment.

Let’s specify that Republican anger about what looks to be an end run around the Constitution would be completely justified. The idea that a president can arrogate to himself the power to annul some laws by ordering that they not be enforced or to effectively promulgate new laws without benefit of congressional action is outrageous. That’s exactly what he would be doing if, as virtually everyone in Washington anticipates he will, the president signs executive orders in September that would halt deportations for illegals and grant green cards for all those who had children after entering the country without permission.

As I wrote earlier, these moves seem to indicate that President Obama is writing off Democratic chances of holding onto the Senate since they would hurt embattled red state Democrats. But it is entirely possible that the president is hoping for an entirely different scenario to play out. If, rather than just using the president’s unconstitutional actions to bury Democrats this fall, Republicans choose to try and use a vote on the budget to defund the president’s efforts, it will almost certainly set in motion a series of events that would lead to a government shutdown in the middle of the fall campaign. Though conservatives would be right to blame Obama and the Democrats for sending the government to the brink, they should know by now that they will be the losers in any such standoff.

Senator Marco Rubio, an ardent proponent of immigration reform, has warned the White House that he and other Republicans will act to remove funding for any presidential actions that would attempt to bypass Congress. Some will call him a flip-flopper because of his own role in pushing for the bipartisan compromise immigration bill that passed the Senate before dying in the House. But Rubio is not merely responding to pushback against his vote from conservatives. He’s also realized that the fiasco at the border this year in which a wave of illegal immigrants has overwhelmed federal resources is largely the fault of statements from the president and congressional moves that gave many would-be illegal immigrants the impression that they would be allowed to stay if they made it across the border. This led him to the correct conclusion that those who believed border enforcement must precede any move toward dealing with the illegals already here were right.

The president is not only determined to ignore the will of Congress, he also has learned that particular lesson. But if Rubio and his colleagues initiate a game of chicken over the budget on this issue it will show that they, too, have already forgotten recent political history. The 2013 government shutdown was also justified in the sense that it was generated by an attempt on the part of Republicans to stop the funding of ObamaCare because of a refusal by the president to compromise on its implementation. Given the disastrous nature of that rollout the president would have done well to heed their advice, but the shutdown was an unmitigated disaster for Republicans that Democrats are eager to repeat. Though it was largely unfair, thanks to clever maneuvers by the president and the assistance of the liberal media, the public blamed the GOP for the shutdown. Inevitably, the Republicans had to give in without getting much in the way of concessions from the president or stopping ObamaCare. Anyone who thinks there will be a different outcome if this is tried over immigration wasn’t paying attention. Any cutoff in government funding now, even on constitutional grounds, will give the Democrats the opportunity to brand their opponents as destructive obstructionists and fanatics rather than principled supporters of the Constitution.

Throw in threats about impeachment proceedings that are already being mooted by Tea Party firebrands like Rep. Steve King of Iowa and you’ve got a formula for a Democratic revival that could enable some of their weaker incumbents to survive.

The president’s intention to throw the Constitution under the bus when it comes to immigration and other issues isn’t in doubt. But what is yet to be determined is on which ground will the battle over this issue be fought. If Republicans take the president’s bait and put a shutdown in motion, the debate will shift from the president’s illegal behavior to one about Republican extremism. If, however, they refrain from such destructive tactics, there is every chance they can return to Washington next January with a majority that will be far better able to stop the president’s actions than anything they can do now.

As with the ObamaCare shutdown, Republican passion is causing them lose sight of the fact that the country will be with them against unconstitutional behavior. Listening to the counsels of despair—which imagined that the shutdown was the last chance to stop ObamaCare—was the mistake in 2013. If they repeat that error this fall it will be a dream come true for the Democrats.

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Border Mess Won’t Help Democrats

Yesterday was a bad day for congressional Republicans. With the summer recess looming, both the House of Representatives and the Senate were working on bills relating to the crisis in which huge numbers of illegal immigrants have surged across our southern borders. But while both houses failed to pass a bill, the fiasco in the GOP-controlled House was particularly humiliating.

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Yesterday was a bad day for congressional Republicans. With the summer recess looming, both the House of Representatives and the Senate were working on bills relating to the crisis in which huge numbers of illegal immigrants have surged across our southern borders. But while both houses failed to pass a bill, the fiasco in the GOP-controlled House was particularly humiliating.

Speaker John Boehner wound up having to cancel a vote on a measure aimed at providing extra funding for the situation at the border due to a revolt from conservatives within his own caucus that was incited, according to some reports, by Texas Senator Ted Cruz. Though the Democrat-controlled Senate also failed to pass its own bill about the crisis, the spectacle of Boehner being once again thwarted by a major revolt from within his own party had returned.

That was bad enough. But even worse, as Charles Krauthammer noted last night on Fox News’s Special Report, was the fact that Boehner compounded matters by then saying that President Obama taking unilateral action could address the lack of funding. As Krauthammer said:

“It is ridiculous to sue the president on a Wednesday because he oversteps the law, as he has done a dozen times illegally and unconstitutionally, and then on a Thursday say that he should overstep the law, contradict the law that passed in 2008 and deal with this [the border] himself.”

Krauthammer is right. Boehner’s stance was “ridiculous.” But no more ridiculous than the spectacle of a new GOP leadership team finding itself unable to manage its caucus even on an issue when Republicans should been eager to act so as to maintain the pressure on the administration over a situation that Republicans have aptly criticized as a man-made crisis largely the fault of President Obama.

This fiasco revived talk about the incompetence of congressional Republicans as well as the way their Tea Party faction still seems to call the tune on difficult issues such as immigration. It was enough to set liberal pundits and Democrats boasting that Boehner’s disaster could change the narrative of the midterm elections and help cost the GOP their chance to win control of the Senate this fall.

But while Boehner’s bad day won’t help Republicans, the claim that this will alter the course of the midterms is, at best, an exaggeration, and, at worst, a misperception that will lead the Democrats to misread the seriousness of the threat to their hold on the Senate.

First, it should be understood that as bad as Thursday was for the GOP, their ability to rebound from this confusion and craft a new compromise that will enable them to pass a bill today that will undo some of the damage. By passing a bill that will make it easier to deport illegal immigrants and fund the crisis on the Rio Grande, Republicans can at least depart Washington saying they have done no worse than the Democrats who weren’t even able to pass their own version of a bill on the issue.

But while President Obama railed at them for producing a bill that couldn’t pass the Senate, he is just as guilty of refusing to compromise as Boehner’s crew. The Democrats may have gained a bit of an advantage this week but if they think the border crisis is going to help them this fall, they are dreaming.

In the long run, a failure to pass comprehensive immigration reform will hurt the Republican Party with Hispanics and make their path to an Electoral College majority in 2016 even more steep than it already is. But in terms of the midterms, this is an issue that does enormous damage to the Democrats in many of this year’s battleground states. Support for a more lenient approach to the influx of illegal aliens may exist but the debacle at the border lends strength to the argument that security must precede any path to legal status for those who cross it without permission. If Democrats in red states think they can run by defending a failure to secure the border or to deport illegals, when that is something that has been encouraged by the president’s misjudgments and statements, they are mistaken.

As foolish as Boehner looked yesterday, Democrats must face up to the fact that the only national theme to this year’s elections will likely be the lack of confidence in the president. After all, no matter how incompetent the GOP House looks, the president is still the president. It will take more than a ridiculous day on Capitol Hill to erase that fact from the voters’ memory.

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Immigration and the Humanitarian Snare

Momentum seems to be building for granting asylum to the tens of thousands of unaccompanied minors who have illegally crossed into the United States from Central America. But lost amid the rush to brand opposition to asylum as uncaring, if not racist, is a serious discussion about whether the U.S. is really obligated to take in every illegal immigrant child who fled violence at home.

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Momentum seems to be building for granting asylum to the tens of thousands of unaccompanied minors who have illegally crossed into the United States from Central America. But lost amid the rush to brand opposition to asylum as uncaring, if not racist, is a serious discussion about whether the U.S. is really obligated to take in every illegal immigrant child who fled violence at home.

With the mainstream media seeking to stoke sympathy for these kids, it is hardly surprising that a new poll shows that 69 percent of Americans believe the children should be allowed to stay if it wasn’t safe for them to be sent home. Figures as diverse as Hillary Clinton and conservative icon George Will have also endorsed treating the kids as refugees.

While it is no surprise that Clinton would seek to play the sympathy card for the illegals, Will’s statement dismissing concerns about the children is a significant victory for immigration advocates:

My view is that we ought to say to these children, welcome to America. You’re going to go to school and get a job and become Americans. We have 3,141 counties in this country. That would be 20 per county. The idea that we can’t assimilate these 8-year-old criminals with their teddy bears is preposterous.

Will is right that these children are not in and of themselves a threat to the country. Immigration strengthens the country. These children may well make impressive contributions to the country if allowed to study and grow up here. Moreover, so long as the discussion about this topic centers on the plight of these kids and the awful conditions in places like Honduras, Guatemala, or El Salvador, it is hard to argue that children who have already suffered terribly during their dangerous treks to the U.S. should be sent back to a situation where their lives could be in danger.

But there is more at stake in this debate about their future than a test of the country’s ability to empathize with the downtrodden. A decision to allow these children to stay will end the issue but will not end this crisis. Instead, as we should have already learned, anything other than a strong signal that the illegals won’t be allowed to stay will ensure that the border will continue to be a magnet for an unending stream of illegals including children for the foreseeable future.

I sympathize with these children and their families who look to the United States as a haven from the awful conditions in much of Central America. Nor do I share the fear of immigrants or the belief that their presence damages the nation. Our broken immigration system should be fixed and, in the long run, some solution must be found for the 12 million illegals already here since talk of their deportation is merely empty rhetoric.

But any country, even the United States, is entitled to control its borders and to see its laws enforced. A failure to send the kids home will send a loud message to the region that will encourage more to try to cross the border, a dangerous process that hurts the children and winds up saddling the U.S. with more illegal aliens.

Moreover, the proposition that America has no choice but to allow the kids to stay as refugees is unsupported by law or common sense. The traditional definition of a refugee is a person who has been forced to flee their homes by war, persecution, or a natural disaster. As bad as conditions are in Central America where drug gangs have made the life of many hell, the idea that crime or poverty in the absence of those other factors can make someone a refugee with a legal right to stay here is virtually unprecedented.

Even more to the point, the notion that it is the job of the United States to not only aid neighbors in distress but to take as many of them into our borders without them obtaining permission is to create an open-ended definition of America’s obligations that has no end in sight. After all, those three nations are not the only ones where kids are in danger.

You don’t have to be an opponent of immigration or oppose reform to understand that the loose talk from the White House about allowing young illegals to stay helped set off the current crisis. To compound this mistake by failing to send these children home will be to send a message that America’s immigration laws are meaningless and that the border is no barrier to those who wish to take advantage of the country’s bounty regardless of legal rights.

The question here isn’t whether we can, as Will stated, assimilate these children. Of course we can. It’s whether an overly broad definition of refugee status will be manipulated by the administration in order to begin the process by which all illegals will be granted permission to stay, perhaps by executive orders in order to boycott Congress.

What is happening at the border is a humanitarian crisis, albeit a man-made one. But it cannot be used as an excuse to justify a lawless approach to governance that will make it impossible for genuine reforms to ever gain majority support. If the president wishes to help aid the people of Central America, he will, no doubt, have the majority of Americans behind him. But America cannot solve the problems of Central America by importing its children. Rolling out the welcome mat for these illegals is a humanitarian snare that will merely ensure that they will be just the first wave of an endless tide of undocumented migrants.

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Compassion and the Rule of Law

The surge of illegal aliens–and in particular unaccompanied minors from Central America–across the border in Texas has started a debate in which more than immigration reform seems to be stake. While most conservatives are decrying the situation as the result of President Obama’s mistakes, some liberals are focusing on what they believe is the lack of compassion for the children that is being forgotten amid the politics. But as the plight of these desperate kids becomes publicized, Americans are being asked to make a choice between their charitable instincts and the rule of law.

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The surge of illegal aliens–and in particular unaccompanied minors from Central America–across the border in Texas has started a debate in which more than immigration reform seems to be stake. While most conservatives are decrying the situation as the result of President Obama’s mistakes, some liberals are focusing on what they believe is the lack of compassion for the children that is being forgotten amid the politics. But as the plight of these desperate kids becomes publicized, Americans are being asked to make a choice between their charitable instincts and the rule of law.

That’s the conceit of a good deal of the coverage of the reaction to the border surge in which demonstrations by Americans angry about the arrival of busloads of illegals are seen as proof of the intolerance and anger at the heart of resistance to immigration reform. The deplorable condition of many of these children and the hardships and violence they faced on their way to the United States all demand the sympathy of any decent person. Once in this country, they deserve humanitarian aid. Republicans who have expressed reluctance to allocate funds to deal with the crisis may be right not to trust President Obama to use the $3.7 billion he has requested wisely. But so long as they are on American soil, there can be no question that the government and concerned citizens must do whatever is needed to see that they are housed, fed, and given the medical care they need.

But that isn’t what’s at stake in this debate. Nobody is saying that the kids shouldn’t be cared for. But the notion, pushed by the United Nations and a growing volume of liberal commentators, is that we must treat these illegals as refugees and let them stay in America rather than being sent back home.

The argument for this proposition rests principally on the idea that the kids are in genuine danger from violence in their own countries. Looked at from that point of view, sending them back would be a death sentence. Thus, granting them asylum is being represented as not merely ethical but our obligation as civilized people.

But the problem with this reasoning is that if this position is allowed to stand, Central America and indeed, much of the rest of the world, might well empty out as immigrants seeking a better life pour into the United States.

It may well be that some of the unaccompanied minors who have come here recently in their tens of thousands would be in danger back home. But the laws regarding refugees were intended to provide a haven to those with a genuine fear of persecution because of their politics, ethnicity, or religious beliefs, not merely those who had the bad luck to live in a country where the rule of law has broken down. Violence is nothing new in Central American countries and even if it has surged lately, declaring that anyone who had fled these nations has a right to stay in the U.S. would render all existing immigration law and even the concept of borders meaningless.

Such compassion is, after all, relative. Those declaring that the United States must absorb children sent streaming over our borders by parents who hope they will be allowed to stay are not, after all, also advocating that war refugees from Syria, Iraq, or Afghanistan or conflicts in dozens of other countries also be taken in with no questions asked. The point of such demands is not merely humanitarian but to underscore demands that those already in the country illegally be allowed a path to legalization if not citizenship.

I have always been sympathetic to such arguments since it seems to me that 11 million people cannot be deported and therefore amnesty is what we’re experiencing now. But the border surge and the subsequent demands to grant tens of thousands of illegal aliens who are minors asylum demonstrates the danger of signaling that illegals will not be deported.

Granting refugee status to the current group of unaccompanied minors will herald the start of future surges that no amount of border patrol or improved security will be able to halt.

If these children deserve compassion, and they do, then by all means the U.S. should extend it to them. If it means more aid to the countries where they must be repatriated or the creation of centers in those countries where they can be protected against predators and poverty, then so be it. But if they are allowed to stay we might as well kiss goodbye any hope of America being able to police its borders or to have a say in who comes or goes.

As the people of many Central American nations have learned to their sorrow, the collapse of the rule of law means is the beginning of the rule of predators and the end of compassion. If we are to avoid the same fate and to be of any use to those who understandably wish to come here–whether legally or illegally–we must not allow a false argument for compassion to undermine our rule of law.

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