Take Care

Donald Trump opened his campaign for the Republican nomination by saying that Mexicans were pouring across our border and they were awful people – drug dealers and rapists and murderers. The Mexican government was laughing at us, sending us the worst of the worst. Some of them might be okay people, he didn’t know, but when he was president he would build a giant wall and make Mexico pay for it – and he would immediately deport all eleven million of these folks who were now here illegally – every man woman and child – but he’d do it humanely. No one knew what he meant by that. No one knew how he would pull this off either – it would cost billions and be a logistical nightmare. Where would we find all the boxcars? How would we track everyone down? Where would we find the manpower? Exactly how would we pull this off? Donald Trump had a one word answer to that – management. He would say no more. He felt he had no need to say more. Case closed.

Trump was also calling for the end of “birthright citizenship” – no automatic citizenship if you were born here. Your parents would have to be full citizens, but that would require changing the Constitution so he eased up on that idea, and the talk about “anchor babies” also died down. If you are a citizen of some other country, and your child is born here, and is automatically a United States citizen, you suddenly are not. It doesn’t work that way. No one was suddenly claiming they were full citizens here because their child happened to be born here – no one ever has. Trump and the other Republicans backed off. You can’t talk nonsense – but the problem remained. Immediately deport the parents and what do you do with the kid, who is an actual United States citizen and cannot be deported? Does the kid become a ward of the state? Do you want to destroy families? Trump and the other Republicans never did have a good answer to that.

The damage was done. All the talk, after Mitt Romney lost in 2012, partly because he got next to no Hispanic votes, about how the Republicans would have to change that, turned out to be no more than talk. They clearly wanted to get rid of these sorts of people. Mitt Romney’s talk of “self-deportation” – make life so miserable for these people that they’ll want to leave – was nothing compared to what Trump was saying about these drug dealers and rapists and murderers. Trump has repeatedly said that once nominated, which seems certain at the moment, he would win one hundred percent of the Hispanic vote – they love him. All the polling shows that maybe six of them will vote for him.

The Republicans know this. They chose South Carolina Governor Nikki Haley to give the Republican response to Obama’s State of the Union. She’s the daughter of immigrants from India and was proud to be a major Republican fixture, and proud to be an American, and suggested that maybe it was time for her party to tone things down a bit. That didn’t go well. Ann Coulter said Donald Trump should deport her, damn it. Many pointed out he couldn’t do that – Nikki Haley was an actual citizen. Ann Coulter didn’t care. Ann Coulter wasn’t alone. To be a Republican these days is to believe the country is being overrun by those drug dealers and rapists and murderers, those people who, even if they all may not be drug dealers and rapists and murderers, aren’t like us. Things are out of control.

That’s the premise, and this Los Angeles Times item points out that this premise seems to be wrong:

The number of immigrants living in the U.S. illegally is at its lowest in more than a decade and, for the first time in years, has probably dropped below 11 million.

A new study by the Center for Migration Studies estimates that 10.9 million immigrants are living in the country without authorization. That is the lowest level since 2003 and the first time the number has dipped below 11 million since 2004.

The decline, which has been documented by previous studies as well, runs counter to the widespread image on the Republican presidential campaign trail of a rise in illegal immigration.

Oops:

GOP front-runner Donald Trump has said illegal immigration rates are “beyond belief” and has claimed that immigrants bringing crime and disease are “just pouring across the border.” Trump has pledged mass deportations and a giant border wall, while criticizing as weak his more moderate rivals, including Jeb Bush, who has proposed giving immigrants already in the country a path to legal status.

According to the report, written by a prominent former government demographics expert, illegal immigration has dropped steadily since 2008, driven in part by a large number of immigrants from Mexico returning home.

Some of this is our slowing economy – there are fewer jobs here – but it’s more than that:

Manuel Pastor, a sociology professor at USC, said the decline in the numbers of immigrants living in the country illegally can be linked to a decline in the U.S. economy and other factors. For example, lower birthrates in Mexico mean there is less competition for jobs there and less pressure to head north to find work.

Pastor said Trump’s heated rhetoric about the growing threat of illegal immigration is “detached from reality” and partly the product of a presidential primary system in which Republican candidates must appeal to their party’s most conservative – and mostly white – voters.

Pastor cited “growing demographic anxieties” among white Americans about the country’s rapidly changing racial and ethnic makeup, and said Trump’s anti-immigrant rhetoric plays into that.

“This is a very racialized debate,” he said.

Of course it is. And buried in the report is the ultimate argument against the miraculous Trump Wall that the Mexicans will pay for – more than half of these folks came here legally, on valid visas, and overstayed those visas, and a whole lot of them are from Europe and Canada and Australia. It seems we have no good mechanism to track that sort of thing, and no wall can fix that, and these are not our Mexican gardeners and busboys. The premise is wrong, as is any premise about Obama:

The debate over how to handle illegal migrants already here has escalated even more in recent weeks. The Obama administration has launched a series of raids aimed at deporting the mostly women and children who have come from Honduras, Guatemala and other Central American countries since 2014. Administration officials are now working frantically to quell political outrage the raids have triggered among immigration rights advocates and Latino leaders.

Obama is doing his job, but how he’s doing his job is in question once again:

The Supreme Court said Tuesday that it would consider a legal challenge to President Obama’s overhaul of the nation’s immigration rules, agreeing to examine the reach of presidential power as it decides the fate of one of his most far-reaching executive actions.

The court, which has twice rejected challenges to Mr. Obama’s signature legislative victory by upholding his health care law, will now rule on the president’s plan to protect millions of illegal immigrants from deportation and allow them to work indefinitely in the country legally.

But then they made it complicated:

The justices raised the possibility of a broad decision by taking the unusual step of adding their own question to the case, asking the parties to address whether Mr. Obama had violated his constitutional obligations to enforce the nation’s laws. The answer to that question could significantly alter the scope of presidential power in realms far beyond immigration.

“The court’s decision could redefine the balance of power between Congress and the president,” said Stephen Yale-Loehr, a law professor at Cornell.

This may be about more than immigration:

Mr. Obama has repeatedly taken unilateral action during his seven years in office, asserting the power of his office to sidestep a recalcitrant Congress on gun control, gay rights, the minimum wage, contraception and climate change. White House officials said Tuesday that the steps taken by Mr. Obama on immigration were “consistent with the actions taken by presidents of both parties” and expressed optimism that the court would agree.

But Mr. Obama’s aggressive use of executive power has intensified the criticism by his adversaries that the president is abusing his authority. Attorney General Ken Paxton of Texas, who is leading the challenge to his immigration actions, urged the court to make it clear that no president can “unilaterally rewrite congressional laws and circumvent the people’s representatives.”

Or it is about immigration:

Fourteen months ago, Mr. Obama ordered the creation of a program intended to allow as many as five million illegal immigrants who are the parents of citizens or of lawful permanent residents to apply for a program sparing them from deportation and providing them work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

That would solve the problem about breaking up families the Republicans dodged. Obama won’t dodge it, and that’s the problem:

The president has said he took the step after years of frustration with Republicans in Congress who had repeatedly refused to support bipartisan Senate legislation to update immigration laws. In an Oval Office address just before Thanksgiving in 2014, Mr. Obama excoriated Republicans for refusing to cooperate and told millions of illegal immigrants, “You can come out of the shadows.”

But the president’s promise has gone unfulfilled. A coalition of 26 states, led by Mr. Paxton, a Republican, quickly filed a lawsuit accusing the president of ignoring federal procedures for changing rules and of abusing the power of his office by sidestepping Congress.

The White House doesn’t see it that way:

“The policies will make our communities safer. They will make our economy stronger,” said Brandi Hoffine, an assistant White House press secretary. “They are consistent with the actions taken by presidents of both parties, the laws passed by Congress, and the decisions of the Supreme Court. We are confident that the policies will be upheld as lawful.”…

If the Supreme Court upholds Mr. Obama’s actions, the White House has vowed to move quickly to set up the DAPA program and begin enrolling immigrants before his successor takes over early next year. Democratic presidential candidates have said they would continue the program, but most of the Republicans in the race have vowed to dismantle it and redouble immigration enforcement.

The administration, fearing that the program could remain frozen through the balance of Mr. Obama’s presidency, had asked the court to move quickly. On that point, at least, the court agreed, and it now appears that the case will be argued in April and decided by the end of June.

That should be interesting:

In their written arguments before the court, the states acknowledged that the president has wide authority over immigration matters, telling the justices that “the executive does have enforcement discretion to forbear from removing aliens on an individual basis.” Their quarrel, they said, was with what they called a blanket grant of “lawful presence” to millions of immigrants, entitling them to various benefits.

In response, Solicitor General Donald B. Verrilli Jr. told the justices that “lawful presence” is merely what has always followed from the executive branch’s decision not to deport someone for a given period of time.

He added that the consequences of allowing immigrants to be lawfully present were positive. “Without work authorization,” Mr. Verrilli wrote of the people eligible for the program, “they are more likely to work for employers who will hire them illegally, often at below-market wages, thereby hurting American workers and giving unscrupulous employers an unfair advantage.”

But there is the matter of standing, whether the states have suffered direct and concrete injury, and that’s ambiguous:

Judge Jerry E. Smith, writing for the majority in the appeals court, said the states had standing to challenge the program under a 2007 Supreme Court decision that said Massachusetts and other states were entitled to sue the Environmental Protection Agency over its refusal to regulate motor vehicle emissions contributing to climate change.

In that case, the Supreme Court said Massachusetts had standing to challenge the Bush administration’s decision not to regulate greenhouse-gas emissions based on the harm the state would suffer from a rise in sea levels and the loss of the state’s coastal land.

Judge Smith said Texas would suffer a similarly direct and concrete injury in having to spend millions of dollars to provide driver’s licenses to immigrants as a consequence of the federal program.

Mr. Verrilli told the justices that Texas’ injury, such as it was, was self-inflicted, a product of its own decision to offer driver’s licenses to people lawfully in the United States at reduced cost.

He said Texas was making things up, but there’s this:

Even as the Obama administration urged the Supreme Court to hear its appeal, a footnote in one of its briefs asked the justices not “to inject a constitutional question into this case.” That request was rebuffed on Tuesday.

The New York Times editorial board adds something else:

In their brief to the Supreme Court, the states concede that the president has discretion to enforce immigration laws in individual cases. But they argue he does not have power to alter the legal status of entire classes of people.

This mischaracterizes the president’s actions. Presidents of both parties have long used their authority to enforce immigration laws selectively, so as to be “efficient, rational and humane,” as a group of former immigration and Homeland Security officials wrote in a brief to the court. For example, both the Reagan and first Bush administrations provided relief from deportation to spouses and children of those eligible for legalization – a class of people whom Congress had expressly declined to protect in the 1986 immigration reform law. …

Congress should have passed comprehensive immigration reform years ago, rather than, say, threatening to impeach the president when he took on the issue. Mr. Obama is wholly within his authority to make wise use of limited enforcement resources. The Supreme Court has already recognized this fact; now it needs to reiterate it.

That’s one way of looking at this, and Jeffrey Toobin, the senior legal analyst for CNN since 2002, puts that this way:

The question of executive authority has also split the Justices along ideological lines, but with unpredictable implications for the current case. Throughout the Bush Administration, for example, the conservative Justices argued, in cases brought on behalf of detainees held in Guantánamo Bay, that the President’s authority in foreign policy was broad. As Justice Clarence Thomas wrote in his dissenting opinion in Hamdan v. Rumsfeld, the majority opinion “openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs.” Regulation of immigration and borders is, of course, a core responsibility of the executive under our system of separation of powers. It will be interesting to see if Thomas and his conservative colleagues are as solicitous of President Obama’s claims as they were of President George W. Bush’s. Likewise, we will see whether the liberals who slapped down Bush on Guantánamo apply the same reasoning to Obama’s claims on immigration.

This could get hot:

If the Court splits along its customary ideological lines – the conservatives against Obama, the liberals for him – the case may serve as another illustration that politics, rather than precedent, is the real currency of the Supreme Court.

Slate’s Mark Joseph Stern gets more specific about that:

Two Obama executive orders, Deferred Action for Childhood Arrivals and Deferred Action for Parental Accountability, defer the deportations of people who arrived in the United States as children, known as DREAMers, and their parents. Critics of DACA and DAPA claim the programs constitute unlawful executive workaround of existing law. That’s bunkum. …

Texas and its co-plaintiffs argue that, even if the programs are lawful, they are invalid because DHS ran afoul of “notice and comment rulemaking.” That clunky phrase simply means that DHS, as a government agency, is required to give notice and ask for comment before issuing legislative rules. But DACA and DAPA aren’t legislative rules: They’re broader policies about immigration enforcement, and agencies are permitted to issue such policies without notice or comment. The rule of thumb here is that a regulation constitutes a policy when it gives agents enforcement discretion. DACA and DAPA do just that, asking DHS employees to consider deferent deportment for DREAMers and their parents but not requiring them to do so. That critical detail clearly gave DHS the authority to bypass the notice-and-comment phase.

This is nonsense and the Republicans know it, but they have something else to work with:

Perhaps recognizing the flimsiness of its statutory and procedural arguments, Texas tacks on a constitutional claim, arguing that DACA and DAPA violate the Take Care Clause of the Constitution. (“The President … shall take care that the laws be faithfully executed.”) This is really silly, for two reasons.

First, Obama is “taking care that the laws be faithfully executed” by establishing immigration enforcement policies and priorities, as Congress has directed him to do.

Second – and more gallingly – the Take Care Clause has never been enforced by the Supreme Court. It is widely regarded as “nonjusticiable,” meaning federal courts have no authority to enforce it. That makes sense, because Congress has passed thousands of laws, not all of which the president can vigorously enforce simultaneously. If courts could use the Take Care Clause to force the president’s hand on a certain statute, the federal judiciary would become a scullion of the minority party: Whenever a Democrat holds the presidency, Republicans could sue to make him enforce their favorite statutes and vice versa.

For that reason, courts and legal commentators have long agreed that the clause represents a general constitutional obligation rather than a specific, justiciable duty. But in the Obama era, the Heritage Foundation has pushed conservative law professors to develop a more robust theory of the Take Care Clause. If Roberts signs off on it, his court will be flooded with highly political lawsuits… The Supreme Court would become just another player in a partisan battle, not a lofty third branch perched above politics.

So, once again, this comes down to the guy who surprised everyone on Obamacare, Chief Justice John Roberts:

It is possible that Roberts sees United States v. Texas as a straightforward legal dispute and that he won’t let standing issues or political concerns stop him from invalidating DACA and DAPA. It is also possible that Roberts has avoided the news over the past seven months and doesn’t know that a vote for Texas would put him in the same camp as Donald Trump and Ted Cruz. But the chief is a smart man and a savvy jurist. He is willing to cast apolitical votes to save programs he doesn’t like, especially when the legacy of the court is on the line.

So yes, Roberts could use United States v. Texas to destroy Obama’s signature immigration achievement. But he could also use the case send a clear message that he will not sacrifice his court’s legitimacy to help the Republican Party score short-term political victories.

Which will it be, and what’s the real problem here? There are now fewer and fewer of “these people” to worry about. The Republicans, through Donald Trump, seem to be needlessly alienating the folks they will need to win the White House, and the effort to get a June ruling that Obama did not “take care” to enforce this law or that seems odd – Obama will be gone seven months later. Even if they win, they win little, and they might not even win. Someone really should take care here. It’s not Barack Obama.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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