Reader’s Exercise

So, Mr Obama is going to offer his “executive order” on immigration tonight. Constitutional scholars are going to offer their opinions. But I’m going to give you a homework assignment, in two parts no less.

Part 1. Imagine a Democrat held Senate/House and a GOP conservative President. Craft what you might see as an abortion executive order that would elicit the same <em>Constitutional</em> objections regarding balance of powers between Congress and Executive as are debated by, say, the Volokh lawyers in the wake of Obama’s immigration order.

Part 2. If you honestly did the homework of part one, explain why (if GOP) you support the part 1 proposal but object to Mr Obama’s proposal or, if a Democrat why you support Mr Obama but reject the GOP proposal.

(note: if you are “consistent” and oppose/support both, this is probably a sign you didn’t honestly complete part 1).

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33 comments

  1. Boonton says:

    ‘Same Constitutional Objections’? Exactly what Constitutional objections have been raised? I have heard a lot of bluster but very little serious Constitutional objections. For example, George Will was on Fox a few days ago and he admitted that not only are most things in the pending executive order agreeable (i.e. focusing deportations on those with violent records) but actually already reflects actual policy in many cases. Yet the order is troubling because it infringes upon ‘Constitutional manners’ between the Executive and Legislative functions. In other words, no actual Constitutional objection.

    Since I haven’t heard a real objection, I can’t craft a hypothetical abortion order that would generate the same objection. I can imagine orders on abortion that might be objected too based on the idea that they would be bad policy, would violate Roe.v.Wade or related decisions, etc.

  2. Boonton says:

    and in terms of policy there’s a pretty clear divide going on. In general everyone knows that Democrats want abortion to be legal and Republicans want it to be illegal. There used to be some cross overs but they are a rare if not extinct bird these days. So your hypothetical order would be one moving towards making abortion illegal….which of course Democrats would oppose as bad policy regardless of Constitutionality.

    Immigration is a very different type of debate here because for the most part Republicans refuse to actually oppose the policy. They say they like the proposed policy. They say Congress should pass it as a law rather than the President implementing it partially through order. But when asked if they will pass it as a law they say ‘no’.

    If this sounds absurd it clearly is. But the reasons why are not so absurd. The Republican base at the moment is basically made up of cranky old white people. The Party knows that in the long run cranky old people die or slip into dementia and they must be replaced by young people. But young people veer Democratic and are less white than old people. In the long run the Party cannot afford to be offensive to the Hispanic population, which is both younger and less white than the general population. But in the short run individual Republicans have a tough time winning races without catering to cranky old white people. So they can’t simply be an anti-immigration party but they also cannot be a pro-immigration party. They have to try to be a ‘quantum party’ that is both at the same time. This is why we get the Mitt Romney disease with Republicans. To win they have to be two contradictory things.

    In the long run though, this strategy is not really viable for reasons that should be pretty obvious. At some point after elections have been won, Republicans will actually have power to do things and at that point they will have to do A or B. Like any other quantum particle, observing it impacts the uncertainties. Saying you want to pass an immigration positive reform bill is fine, but if you actually get the Congress and yet still won’t pass one it is a lot less fine. The contradictions, in the end, will not hold.

  3. Mark says:

    Boonton,
    Ok. Your homework assignment has been returned with an “F”. The homework (to remind) you was to find an equivalent Constitutional challenge/overreach by a GOP President that would find similar objections from Democrats. YOu didn’t even try.

    They say they like the proposed policy. They say Congress should pass it as a law rather than the President implementing it partially through order. But when asked if they will pass it as a law they say ‘no’.

    You mean like when Mr Bush wanted immigration reform and was amenable to Democrat suggestions (with a Democrat majority leading/holding both House and Senate) … and oddly enough nothing was proposed. When asked if they will pass a law, the said ‘no’. Apparently the Democrat party base was then “cranky old white people”, which is why nothing got done.

    At some point after elections have been won, Republicans will actually have power to do things and at that point they will have to do A or B. See above.

    Oddly enough, then like now, the veto held the logjam. But you’ll likely pretend that’s irrelevant.

    So, you think immigration isn’t equivalent to abortion … Let’s consider some suggestions (now that we know “prosecutorial discretion” is the method the President chose to try to write law.

    1. President pens executive order to not prosecute any abortion protest/abortion clinic vicinity protests
    2. President pens executive order not to prosecute any who is practicing only open/concealed carry, with the caveat that he will (as the President offered to stiffen expulsion of felons) this order will increase vigilance and penalties for discharging your firearm illegally
    3. President pens executive order not to prosecute companies or individuals for violating new healthcare regulations vis a vis ACA.
    4. President pens executive order to not prosecute any companies paying less federal than minimum wage limits.

    This is a start. You suggest one for considerations or pick one. The point is, can you even conceive of a possible GOP Presidential executive order with respect to prosecutorial discretion that you as a Democrat would find objectionable, but that the mainstream GOP would tend to support (if they swallowed their discomfort over the Constitutional issue, which (the GOP believes) is more likely to occur for conservatives than liberals).

    So. Try again, for a non-failing grade.

  4. Boonton says:

    When asked if they will pass a law, the said ‘no’. Apparently the Democrat party base was then “cranky old white people”, which is why nothing got done.

    Actually I believe Congressional Republicans again killed it then. That illustrates the contrast I pointed out to you, in the long run the GOP as a whole cannot cater just to the ‘cranky old white person’ crowd, but individual Republican politicians need that crowd to win elections.

    The homework (to remind) you was to find an equivalent Constitutional challenge/overreach by a GOP President that would find similar objections from Democrats.

    As I pointed out, since no actual Constitutional objections have been raised how can I find a hypothetical order that would raise similiar objections?

    ***
    President pens executive order to not prosecute any abortion protest/abortion clinic vicinity protests
    President pens executive order not to prosecute any who is practicing only open/concealed carry, with the caveat that he will (as the President offered to stiffen expulsion of felons) this order will increase vigilance and penalties for discharging your firearm illegally
    ****

    Pretty irrelevant. Violent protests near an abortion clinic would fall under state law as would their prosecution. Likewise laws banning open concealed carry would bring you up on state, not Federal charges if you broke them.

    President pens executive order to not prosecute any companies paying less federal than minimum wage limits.

    How would this prevent individual workers from suing for their full wage?

    President pens executive order not to prosecute companies or individuals for violating new healthcare regulations vis a vis ACA.

    This one might fly, specifical what criminal codes do you believe the ACA added?

    The point is, can you even conceive of a possible GOP Presidential executive order with respect to prosecutorial discretion …

    Thing is prosecutorial discretion comes about because the legislature almost always decides not to fully fund 100% law enforcement. Example, you are police chief in a small town with 100 roads. You are only given 10 cop cars so you decide to patrol for speeders on only 10 roads. Perhaps you advise the council that the 40 mph limit is unreasonable and they should have 55 instead. They reject you but you announce since you lack the manpower to patrol all the roads all the time you will pull over the fastest speeders first.

    This sort of thing has always been done so what Obama is doing cannot really be objected too by serious people who want to do something other than grandstand.

    Now suppose Obama announced he would pardon anyone who assassinated a GOP Congressperson who votes against immigration reform. Or suppose a GOP President declared he would not prosecute people who blew up abortion clinics.

    I think then you could equally assume both sides would raise a serious Constitutional challenge that the President was not faithfully executing the law. But what’s striking about those examples of prosecutorial discretion is that they stand the usual reasoning for discretion (resource allocation) on its head….prosecuting less serious offsenses while ignoring more serious ones.

  5. Mark says:

    Boonton,

    Actually I believe Congressional Republicans again killed it then

    They had minority in both House and Senate. How’d they kill it.

    As I pointed out, since no actual Constitutional objections have been raised how can I find a hypothetical order that would raise similiar objections?

    Read discussions on Volokh. You don’t think there is anything to talk about until cases have been filed? Please.

    Pretty irrelevant. Violent protests near an abortion clinic would fall under state law as would their prosecution.

    Oddly enough, there was a SCOTUS ruling on that just this year.

    The point is, can you even conceive of a possible GOP Presidential executive order with respect to prosecutorial discretion …

    So is that yes? You cannot even imagine prosecutorial descretionary as Constitutional overreach.

    This one might fly, specifical what criminal codes do you believe the ACA added?

    Tax laws oddly enough, disobeying them ends up in executive branch enforcement. Or didn’t you realize that the Administration actually deals in enforcing laws that aren’t part of the criminal codes, which in turn involve the courts. Which reminds me of some other areas, regarding enforcement of the Obama sponsored financial/bank regulatory environment.

    Still getting an “F” as a grade.

  6. Mark says:

    Boonton,
    You seriously think that mainstream GOP members would find blowing up abortion clinics non-objectionable? You live in a strange universe my friend. You should get out more, this universe contains very very few live conservatives who think that would be a good thing, even as they object to abortion.

  7. Boonton says:

    They had minority in both House and Senate. How’d they kill it.

    By opposing it, of course.. Are you know a supermajority is required to pass something in Congress.

    Read discussions on Volokh.

    Life is short, I’ve said several times now I have not heard a serious objection. If you have one, either one you thought up yourself or cribbed from Volokh, present it. I’m not required to monitor the entire Internet.

    Oddly enough, there was a SCOTUS ruling on that just this year.

    Yes there’s lots of cases about the free speech rights of protestors around clinics and the right of the clinics to not have their business disrupted. None of that entails the President deciding to prosecute or not prosecute anyone.

    You cannot even imagine prosecutorial descretionary as Constitutional overreach

    I provided you several examples, but they look nothing like what the President did.

    Tax laws oddly enough, disobeying them ends up in executive branch enforcement.

    Weak. Tax laws are administrative before you can make a case that the Executive is violating them you have to show the law itself does not provide the branch the administrative leeway to do whatever it is you are objecting too.

    You seriously think that mainstream GOP members would find blowing up abortion clinics non-objectionable?

    No but perhaps the idea behind such a policy wouldn’t be to actually blow up clinics but simply to force them to close since they wouldn’t feel safe. Likewise I don’t think mainstream Democrats would want Obama to pardon people who assassinate Republican lawmakers. But you asked for examples of hypothetical orders that would get both sides upset and raise Constitutional objections.

  8. Mark says:

    Boonton,

    But you asked for examples of hypothetical orders that would get both sides upset and raise Constitutional objections.

    Uhm, no. I asked for a hypothetical executive order of the same type that the President offered that would be supported by the GOP and not by Democrats. Not one that would piss everyone off.

    Are you know a supermajority is required to pass something in Congress.

    Not true. A supermajority is only required to override a veto. You know that.

    As I pointed out, since no actual Constitutional objections have been raised how can I find a hypothetical order that would raise similiar objections? … your response .. Life is short, I’ve said several times now I have not heard a serious objection

    This from the guy who has trouble even conceiving of prosecutorial overreach. OK. Here’s some help, consider this and this.

  9. Mark says:

    Boonton,
    Another one.

    A salient quote:

    ut that doesn’t mean we can’t see an obvious violation for what it is. Here, the violation obviously falls on the other side. A systematic plan to disregard the law, not because it’s unconstitutional, but simply because the president disagrees with the law and would prefer the law be different, is obviously not taking care that the laws be faithfully executed

  10. Mark says:

    Boonton,
    Here’s your prosecutorial discretion litmus test. Do you think the President is faithfully enforcing the relevant statutes? No weaseling. Faithfully. executing the letter and spirit of the law on the books. If not, that’s abuse. End of story.

  11. Boonton says:

    Mark

    Not true. A supermajority is only required to override a veto. You know that.

    Look after hundreds of blog entries and links about the reading you did on US politics I know you are not so stupid as to not understand that the actual vote in the Congress is the ratification of political agreement, not agreement in itself. In other words, the stuff that actually decides whether or not a bill passes happens before the actual vote is taken. This means that effectively super-majority support of some type is always needed to pass something. The most explicit example is the Senate’s filibuster power but that is just the tip of the iceberg. For example, party leaders decide whether or not to ‘release’ their members to vote as they will. That means a bill that squeaks through with just 51% had to have some measure of support from the minority.

    This from the guy who has trouble even conceiving of prosecutorial overreach. OK. Here’s some help, consider this and this.

    This seems to be focused on an advisory memo and that’s all a memo is, advice. The core of it seems to be the assertion that when enforcement is deferred on a ‘case-by-case basis’ then that decision is judically ‘unreviewable’. So if I follow that, what it is saying if Immigration decides not to raise a deportation for someone who ges a speeding ticket, even though the law might say any infaction of the law merits deportation, on the grounds that the case officer feels it isn’t worth the effort, that decision is unreviewable. In other words, no court would entertain a lawsuit asserting the Executive wasn’t doing its job.

    I don’t buy this. Go back to my example where you are police chief in a town with 100 roads that gives you 10 cop cars. You decide to put patrols not where the most speeders are (i.e. the road where 50% of the traffic goes 30 mph in a 25mph zone) but where the most excessive speeders are (the highway where the average speeder is exceeding the limit by 30+ mph). That is certainally prosecutorial discretion but it is not ‘case by case’ review, it is review by class of case versus class of case.

    Your other example asserts that it is over the line if the Executive happens to disagree with the law… So in my analogy what would be acceptable discretion magically becomes unacceptable if the police chief happens to disagree with the town setting the limit at only 25mph on those roads.

    Sorry here Obama is essentially saying “Congress gave me resources to deport 20% of illegal immigrants, so I’m assigning priority to those who have serious crimes on record or who have recently crossed and I’m allowing those who have been here a while, committed no serious crimes and are generally ok people to come forward and identify themselves for deferred action”. There is no serious Constitutional challenge to that so I’m not sure how you could construct a like Executive Order in regards to abortion. There are actually EO’s regarding abortion that swing back and forth whenever the White House changes parties (I believe they concern things like is abortion available at military hospitals abroad, perhaps some research guidelines and so on).

    Do you think the President is faithfully enforcing the relevant statutes? No weaseling. Faithfully. executing the letter and spirit of the law on the books

    Yes I do. Given that illegal immigraton has flatlined during Obama’s Presidency while deportations have set record levels how exactly can you honestly not agree with me?

  12. Mark says:

    Boonton,
    Wow. Lot’s of spin here (and that’s not a good thing).

    Majority, uhm. Hello. Majority party chairs and holds majority in committees. If the President is on board and you have majority in House and Senate, you don’t need a majority. See Obamacare as an example. … next

    Yes. It’s an advisory memo. What was the purpose of the memo? Hmm. Well, it seems this was from the administrations legal counsel as to the legality of their proposed policy changes vis a vis immigration. So it is not irrelevant, even if you completely misunderstood it.

    Go back to my example where you are police chief in a town with 100 roads that gives you 10 cop cars. You decide to put patrols not where the most speeders are (i.e. the road where 50% of the traffic goes 30 mph in a 25mph zone) but where the most excessive speeders are (the highway where the average speeder is exceeding the limit by 30+ mph). That is certainly prosecutorial discretion but it is not ‘case by case’ review, it is review by class of case versus class of case.

    This is spin. To make you analogy more like Mr Obama’s proposed legislation … you could add that you’ve decided on policy to only serve tickets to those with felony convictions. This is not a case by case policy. This is a change of the law (only felons get speeding tickets). This isn’t about limited funds (you’re still stopping speeders on limited roads). This is prosecutorial abuse.

    Sorry here Obama is essentially saying “Congress gave me resources to deport 20% of illegal immigrants, so I’m assigning priority to those who have serious crimes on record or who have recently crossed and I’m allowing those who have been here a while, committed no serious crimes and are generally ok people to come forward and identify themselves for deferred action”.

    That’s because of your spin requiring you misunderstand the policy.

    Given that illegal immigraton has flatlined during Obama’s Presidency while deportations have set record levels how exactly can you honestly not agree with me?

    OK. And he faithfully brushes his teeth. That alas, is irrelevant to whether or not this change is a faithful excecution of policy … and your metric is about as relevant as teeth-brushing diligence.

  13. Boonton says:

    Majority, uhm. Hello. Majority party chairs and holds majority in committees. If the President is on board and you have majority in House and Senate, you don’t need a majority. See Obamacare as an example. … next

    Unless it is never scheduled for a vote. Unless it is punted off to committee who will hold unto it until hell freezes over. Sometimes people who will go on record voting yes for a bill will nonetheless act to thwart it’s progress, likewise those who will vote no may still aid in its progress. Support or opposition does not exist as a binary state but as a continuem. Strictly speaking, leaving aside filibusters, a simple majority will only ensure your bill passing in cases of perfect partisanship.

    This is spin. To make you analogy more like Mr Obama’s proposed legislation … you could add that you’ve decided on policy to only serve tickets to those with felony convictions.

    You are aware that cops are actually more inclined to give you tickets if you already have a record of previous tickets and warnings. I was once surprised to get a ticket for a past due inspection sticker because the cop knew another cop in another town had given me a verbal warning about it a few days before. Verbal warnings aren’t suggestions but entered in a database and part of the decision making process on future tickets! Not quite the same as checking someone’s criminal record but it actually works for the analogy.

    So given that it actually makes a lot of sense to not bother with deporting people who have clean records. In fact that is already a feature of how it works ‘on the ground’ as getting a felony conviction often means being automatically scheduled for a deportation hearing upon your sentence being completed.

    This is a change of the law (only felons get speeding tickets). This isn’t about limited funds (you’re still stopping speeders on limited roads).

    If it was then a non-felon who nonetheless speeds and gets a ticket can sue to have the ticket squashed on the grounds the law only applies to felons, right? Deferred deportation does not translate into a right not to be deported but simply means the gov’t is hitting the ‘pause button’…and that is actually quite common in gov’t administration.

    OK. And he faithfully brushes his teeth. That alas, is irrelevant to whether or not this change is a faithful excecution of policy

    So the actual # of deportations is irrelevant to whether he is executing a policy that calls for deportation? And you’re the one asserting the other side is playing a spin game?

  14. Boonton says:

    Thinking more ’bout your analogy with the town who tries to ticket only felons. Let’s work with a more realistic possibility.

    Suppose the police chief opts for a different policy. Going forward cops will aggressvily pull over any speeder they find no matter how small or large their overage is. However, they will issue warnings. Get 3 warnings in less than 60 days and it’s ticket. Even better, perhaps the cops will issue ‘pending tickets’. If 60 days go by and you don’t get pulled over again they rip them up, but if you do then they file all those tickets against you and you have to go to court.

    Of course this is not a binding promise. This policy can be overriden in especially egregious cases. For example if you are speeding away from a bank robbery the cop will toss a ticket on you for speeding, no ‘warning’. But generally this will be the new policy.

    Legal? Absolutely. The legislature has no beef to complain but if they don’t like it they have a lot of options.
    1. They can pass a law that specifically prohibits cops from collecting warning data.
    2. They can institute their own warning system (say you have to go without a warning for 120 days).
    3. They can ban pending tickets, they can require cops to always issue tickets…etc etc.

    But suppose they do nothing. Well they can’t really complain that the warning system changes the law from ‘no speeding’ to ‘3 chances to speed then you get a ticket’. The law doesn’t say you don’t get 3 chances after all. The legislature, if they really object, has to do their job and make their desires clear. If they don’t then they have none.

  15. Mark says:

    Boonton,
    Actually the legislature has a beef. This isn’t a “case by case” basis. It’s a policy change contrary to the law. This is abuse of power. Sorry, reading case law cited by that memo, such policy changes can be made if they are “case by case” and not a generic policy. Basically individual cops can “give warnings” based on their reading on the scene, but a policy change that isn’t case/case is not legal.

  16. Boonton says:

    The existence of recent prior warnings would be the’case by case’ reading.

  17. Boonton says:

    BTW, you seem to citing a claim that Heckler.v.Chaney established some sort of test that discretion is only acceptable if done on a ‘case by case basis’. Reviewing the actual case at http://en.wikipedia.org/wiki/Heckler_v._Chaney seems to make the opposite conclusion. Almost all executive discretion is beyond judicial review.

  18. Boonton says:

    BTW, I’m trying to find a better source for this but the below states:

    http://www.quora.com/?digest_story=8194380

    Section 503(b) of the Immigration and Nationality Act grants the AG power to suspend any deportation proceeding at any time for any reason.

    Assuming this is true this puts the nail in the coffin for what you have been trying to argue. If Congress passes a law that says “The President can do anything he wants in regards to abortion in some policy area for any reason” then it would be very hard to imagine Demcorats could argue Constitutional violation if a pro-life president used such a provision to put burdens on legal abortions.

  19. Mark says:

    Boonton,
    I’m not making the claim. The poster at (or cited by Volokh) is.

    Almost all executive discretion is beyond judicial review.

    Again. Cite a case which we can discuss which involves a GOP President and Congress using executive action that oversteps your bounds by re-writing the law in a similar fashion.

  20. Mark says:

    Oh, wait. The Heckler/Chaney case was cited by Obama’s counsel as requiring case by case review wasn’t it?

  21. Boonton says:

    From Wikipedia’s review of the Heckler case:

    The Court further supported its holding by pointing to three reasons why reviewing an agency’s decision not to act is unsuitable to judicial review. First, agency decisions whether to initiate enforcement actions are usually based on a complicated balancing of multiple factors, such as efficient allocation of limited resources, likelihood of success, and the relationship of the potential action to the overall enforcement strategy of the agency. The courts are ill-suited to performing such an analysis. Secondly, the court noted when an agency chooses not to act, they are not exercising any coercive power over others that might be worthy of heightened judicial protection. Third, the Court found an agency’s discretion not to seek enforcement as being analogous to exercises of prosecutorial discretion that courts have traditionally been unwilling to review

    Now Heckler was about the FDA. specifically anti-death penalty advocates wanted the FDA to review drugs used for executions for ‘safety and efficacy’. The FDA refused. I’m not seeing anything in the above that indicates discretion is required to be done on a case by case basis. The court seems to be providing for no review of discretion at all. So even if Volokh is correct in the memo, where this concept of a case by case review comes from is hardly clear.

    But here’s the real problem for you, the FDA law probably contains very few provisions for the AG to suspend ‘for any reason’ FDA review. If Congress wrote that into immigration law (and there’s probably good reason to think they did since they probably would want the Executive to make decisions on the fly), then any bar to discretion that might exist when it comes to other laws drops to nearly zero for this law. If you give me a check for $10 and I write an extra 0 to make it $100, you have every right to fight me and the bank in cashing it. If you give me a blank check you can’t say anything.

  22. Mark says:

    Boonton,
    I’d doubt it is true (section 503b) or that it means what you think, the President’s counsel would have highlighted that. And, “halting” deportation isn’t the same as installing a programmed path to residency/citizenship.

  23. Mark says:

    Boonton,

    If Congress passes a law that says “The President can do anything he wants in regards to abortion in some policy area for any reason” then it would be very hard to imagine Demcorats could argue Constitutional violation if a pro-life president used such a provision to put burdens on legal abortions.

    Actually, looking at that suggestion one would think that the Democrats would be arguing that the law itself is not Constitutional, not that the President’s using the provision is such.

  24. Mark says:

    Boonton,
    Look I don’t believe the blank check thing. Neither Obama nor his counsel cited it. If it existed and applied they would have.

  25. Boonton says:

    The ‘blank check’ rings true for multiple reasons. Perhaps the primary one is the lack of any viable legal challenges to Obama’s order. Republicans have no shortage of lawyers and if they had a winning case they would press it in court. The fact that their focus has been on punditry hints that they know the law and they know Obama’s hand is much stronger than they have lead people like you to believe.

    The other reason is that unlike the FDA, I can see why Congress would put a lot of discretion into the immigration law, esp. regarding deportations. Deportations can become a diplomatic issue (example, suppose a country fell to a communist regime like Cuba did in the 50’s, the President might respond by halting all deportations of illegals back to that country). The Executive probably asked for and got a lot of room in the laws as they were written and Congress was probably happy to comply.

  26. Boonton says:

    And, “halting” deportation isn’t the same as installing a programmed path to residency/citizenship.

    And where has that been implemented? All I’ve seen is deportation is put on pause. Simply not being deported is hardly the same as being granted citizenship or even on a path to citizenship. Plenty of people will live their entire lives in the US legally and never become citizens.

  27. Mark says:

    Boonton,

    And where has that been implemented?

    We are discussing a proposal. Your question makes no sense.

    1. The President proposes X.
    2. Is feature Y of X may not be Consitutional.
    3. Objection about your point, where has Y been implemented.
    4. Uhm, huh?

  28. Mark says:

    Boonton,

    Perhaps the primary one is the lack of any viable legal challenges to Obama’s order.

    Uhm, don’t you have to wait until the EO is implemented to have a case?

    The fact that their focus has been on punditry hints that they know the law and they know Obama’s hand is much stronger than they have lead people like you to believe.

    Let’s see. The day after the EO Volokh (not “GOP” or really part of “punditry” btw).

    Again the intent of the “blank check” by your paragraph above indicates “for diplomatic reasons” is an individual case-by-case particular kind of exemption. Not a cart blanche to setup a new regulatory mechanism and program to establish residency for illegals in a generic way. You know that. And it is why this sort of argument wasn’t used by either the President or his counsel.

  29. Boonton says:

    ***
    1. The President proposes X.
    2. Is feature Y of X may not be Consitutional.
    3. Objection about your point, where has Y been implemented.
    4. Uhm, huh?
    ****

    You seem to be missing 1.5. Y is a feature of X. Show me where Obama has signed an executive order granting anyone citizenship or a ‘path to citizenship’, whatever that means.

    Uhm, don’t you have to wait until the EO is implemented to have a case?

    Not really, you could ask for a court order enjoining someone from acting in a way that violates your rights…you don’t have to actually wait for the implementation to happen.

    Again the intent of the “blank check” by your paragraph above indicates “for diplomatic reasons” is an individual case-by-case particular kind of exemption.

    I gave you but one example for why Congress might have wanted the Executive to have blanket authority to suspend deportations for ‘any reason’. Again Congress literally has hundreds of lawyers, if they wanted to write a bill that limited discretion to diplomatic reasons they could have easily written one. They didn’t and the sword here cuts both ways. If Congress won’t pass a revised immigration law then they have to live with the one that was passed and you’ve cited nothing that indicates the actual passed law does not grant the Executive an exceptional amount of discretionary power.

  30. Mark says:

    Boonton,

    Show me where Obama has signed an executive order granting anyone citizenship or a ‘path to citizenship’, whatever that means.

    Uhm, From the President’s posted remarks.

    The President’s proposal provides undocumented immigrants with a legal way to earn citizenship so they can come out of the shadows. It holds them accountable by requiring they pass background checks, pay taxes and a penalty, go to the back of the line, and learn English. It requires everyone to play by the same rules.

    “provides … a legal way” presumably is new.

  31. Boonton says:

    So you can point to the exact sentence in the Executive Order that alters the citizenship laws? Or does ‘earn citizenship’ presume this or a future Congress will at some point revise the current law to accomodate some or all of the people who have successfully completed the tasks outlined in your quote?

    ‘Earn citizenship’ is vague. Perhaps I have you work on repairs in my house fo rthe day. You’ve earned a days pay. But does that mean I have paid you? Maybe, or maybe not. Maybe I’ll stiff you. Does the statement mean if you do all those things you get to be a citizen or does it mean the current or future President has to go to Congress and say something like “look these people did all these things, you owe them a shot at citizenship so change the law now” and Congress may or may not stiff them?

  32. Mark says:

    Boonton,
    “The President… provides a program” seems to me that this is something he is doing via EO. That program is what we are (and have been all along) talking about as being unConstitutional. Right?

  33. Boonton says:

    http://blogs.wsj.com/washwire/2014/11/20/text-of-the-white-house-fact-sheet-on-obamas-immigration-action/ is a fact sheet and not the text of the order itself but it seems sufficiently technical for our discussion. Glancing thru it I see nothing about changing citizenship requirements. I suggest you go through and show me which areas are in violation of existing law in your opinion.