Lame Duck or Prizefighter?
November 20, 2014 Leave a comment
In the months leading up to the U.S. midterm elections President Obama seemed to be sitting on the sidelines. Supports looked in vain for any sign of movement on a host of pressing issues including immigration, the XL pipeline, climate change, net neutrality, tax reform and economic policy.
The president recognized the massive wall of opposition from his Republican critics that awaited any action he might pursue on those issues. And so, he waited it out. He held off taking action on these matters until after the midterm elections were over so that Democratic candidates would not get caught in the cross fire.
But now Obama seems to be coming out of his corner – not defeated, but invigorated, saying in effect, “Bring it on.”
Tonight Obama will inform the nation of his immigration policy to be implemented by executive order. Astonishingly, the major networks have refused to broadcast it – shouldn’t the “liberal” media be jumping at the chance to grant him this exposure? Instead, people will get selected “sound bites” broadcast later on – reflecting someone else’s take on his address.
I am sure Obama’s Republican critics will immediately start howling about Obama’s executive orders, demanding his impeachment – even though Ronald Reagan and George W. Bush instituted similar immigration changes by executive order during their administrations. (What? You mean the conservative media isn’t reporting this?)
According to the analysis I have read, Obama has full constitutional authority over deportations and how they shall be carried out. A recent article in the New Republic by Erwin Cherminsky, the Dean of Law at the University of California and Sam Kleiner, a fellow at the Yale Law Information Society Project, state,
One thing is clear: The president has the constitutional authority to decide to not proceed with deportations. It has always been within the president’s discretion to decide whether to have the Department of Justice enforce a particular law.
A president may choose to not enforce particular laws when deciding how to allocate scarce resources or based on his view of the best public policy. Few object, for example, when the Department of Justice does not prosecute those who possess small amounts of marijuana, even though they violated the federal Controlled Substance Act. There are countless federal laws that go unenforced. In 1800, then congressman and later Chief Justice John Marshall stated, the president may “direct that the criminal be prosecuted no further” because it is “the exercise of an indubitable and constitutional power.”
They note that, “The president’s broad prosecutorial discretion has been repeatedly recognized by the courts.” Furthermore,
This prosecutorial discretion is even greater in immigration because the treatment of foreign citizens is inextricably intertwined with the nation’s foreign affairs, an area especially under the president’s control.
In fact, they report that
[P]residents of both parties have tailored immigration policy to their own goals. In 1987, the Reagan administration took executive action to limit deportations for 200,000 Nicaraguan exiles, even those who had been turned down for asylum. Similarly, President George H.W. Bush in 1990 limited deportations of Chinese students and in 1991 kept hundreds of Kuwait citizens from being deported. President Bill Clinton regularly used his power of prosecutorial discretion to limit deportations; in 1993 he gave 18-month extensions to Salvadoran residents, in 1997 he limited deportations for Haitians, and in 1998 he limited deportations to Central American counties that had been devastated by hurricanes.
President George W. Bush also took major steps to limit deportations on humanitarian grounds. In 2001, he limited deportation of Salvadorian citizens at the request of the Salvadorian president who said that their remittances were a key part of their nation’s economy. The Bush administration embraced prosecutorial discretion and ordered the consideration of factors such as whether a mom was nursing a child or whether an undocumented person was a U.S. military veteran in making the determination on whether to order a deportation.
Obama’s conservative opponents will no doubt howl in protest and will dire utter threats over Obama’s actions. They will seek to mobilize their base and bring in a flurry of donations to help “take Obama down.”
But they will lose in the end. And the Latino community will remember who it was that attacked them and who defended them when the next election rolls around.
To use a boxing metaphor, the bell has rung on “Round 1” in the post-election battle. Both parties are moving to the center of the ring poised to do battle, and the sparring has begun. It should be interesting to see who flails in the wind and who ends up landing the decisive blow.