Archive for category Immigration

DACA and the Courts

Two days ago, a 9th Circuit federal judge in San Francisco blocked the Trump Administration’s reversal of Obama’s DACA, the program under which illegal aliens brought here as children could register, in return for a suspension of enforcement of immigration law.  He did so with a decision that, as Josh Blackman puts it, reads like bad punditry, bereft of any legal reasoning or precedent.

On the Twitters, the pseudonymous “Thomas H Crown” explains in an 800-word thread what got us here, why this sort of ruling both stems from and feeds a deeper civic rot.

So a judge begins with the proposition that an executive order is lawfully entered; executive orders by definition lie entirely in the discretion of the Executive and may be withdrawn or advanced at his sole discretion; and concluded withdrawing it may be illegal.

The problem with our system of government right now is diffuse responsibility and a categorical unwillingness by the legitimately-enumerated-and-responsible actors to retake their power and responsibility.

The judiciary has absolutely no power to order the Executive to retain a program the Executive created ex nihilo and contrary to the express terms of a lawfully-enacted, Constitutional statute.

The Executive should be aggrieved because its power is being summarily denied by a Branch with no rule/law-making power of its own; its power is (theoretically) limited to derivative lawmaking based on other Branches’ acts.

The Legislature should be absolutely losing its poop because (1) its power was wrongfully grabbed by the Executive at the start and (2) now that the Executive is backing down, the Judiciary is grabbing the mantle in its place.

Elementary civics teaches that the Constitution creates checks and balances, i.e., no one branch can become more powerful than any other because each has a power to negate the one taking its authority; and two beat one.

Elementary civics also teaches that Congress has the power, under extraordinary circumstances, to rip the other branches to shreds, by impeachment and by defunding their day-to-day operations (but not Article III’s salaries).

But this arrangement is a dead letter.

Instead, here, roughly, is our system.

Congress passes laws sometimes and sometimes not, and passes budgets sometimes and sometimes not, but never actually exercises the power of the purse over anything.

Impeachment, because of its uneven execution on the Executive, is considered a nuclear device, and even in the face of clear lawbreaking and arrogation of power is at best a toss of slightly-loaded dice.

The bulk of lawmaking is actually done by the Executive, by a facially unconstitutional delegation of authority of that power by Congress almost a century ago that most people now take for granted.

When the Executive makes laws/novel interpretations completely outside the text/creates whole new programs, Congress races to fundraise off it. Sometimes, it asks the third branch to say the second is naughty.

The judiciary makes new Constitutional amendments, something it’s really not qualified to do (lawyers know our own), occasionally orders the Executive to change its interpretation of a law to what the judiciary wants, and now runs illegal Executive programs.

Instead of ordering up a round of impeachments or at least informing the judiciary that its electric, gas, water, rent, etc., bills won’t be paid any more, Congress races to fundraise.

Instead of telling the judiciary it can enforce its own damned laws (BUT THE MARSHAL OF THE SUPREME COURT) if it wants to be the Executive, the Executive asks the judiciary to please reconsider. Please.

So instead of Article I — the first and most expansive — being primus inter pares, which is necessary for effective small-r republican governance, or Article II, which is at least elected, the system is totally inverted and no one changes it.

The system is now designed to funnel power to the only unelected — and therefore least-inclined to republican responsibility — branch, then the second-least responsible, and leave the most electorally-responsible one the one with the least power.

In times of economic downturn or uncertainty, direct stimulus to the humans does not lead to increased spending. They instead disproportionately use it to pay down debt or accrue savings (same thing).

This is because the humans are surprisingly cannier than the people they elect to govern them.

The effects are fairly straightforward: Increased voter apathy, lower turnout for elections in which only Congress is in play, and increased energy and commitment to the outcome of the only elected branch where real decisions are made.

In other words, the humans can tell that there’s no point in caring too too much about Congress, as it’s an ATM with occasional fits of lawmaking, and a great deal of reason to care about the Executive, the source (more or less) of judges and only meaningful elected office.

It’s an unpleasant feedback loop, as this only encourages the same mess that caused that behavior in the first place.

Worse, the incentives the Founders identified in the elected officials were way and totally wrong. In Congress, they don’t care about power, they care about prestige, the appearance of power, and wealth.

They have no incentive to check the Executive or Judiciary because if what they do doesn’t make vox populi roar with approval, their incentives could be endangered.

The people care that they feel like they have a responsive system, regardless of the accuracy of this feeling, and have a king/champion and wise philosopher bench to guide them.

If you care about republican governance, this is a truly hideous state of affairs.

Most people don’t.

People have been fixated on the dangers of getting used to Trump’s unusual behavior for a president. Getting used to this kind of “because I said so” jurisprudence strikes me as just as dangerous.  Hamilton wrote that the judiciary would be the weakest branch, and that judges would be afraid of getting so far out of line for fear of being impeached.  This is the kind of ruling that begins to make impeachment look plausible.

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Realistic Republican Expectations on Immigration

In the wake of Mitt Romney’s defeat, and poor showing among Hispanics, Republicans and conservatives in general are reassessing their position on immigration.  At least part of this is driven by vote calculations.  Some proponents of reform have been pushing entirely unrealistic numbers in terms of the Hispanic vote for Republicans, such as winning half the Hispanic vote.  Such hopes are fool’s gold, and I fear that expectations of sudden electoral riches may end up driving Republicans to make a bad bargain, both for themselves and the country.

Democrats won’t let the Republicans off the hook that easily.  The party of institutionalized racism and identity politics certainly isn’t going to simply give up on what’s been a winning hand for them for decades now.  There’s also reason to believe that only a fairly small part of the Hispanic vote, above Romney’s 29%, is available to Republicans, anyway.  A recent forum at the Wilson Center on the Latino Vote had a lot to offer on the subject, but a few points stood out to confirm this assessment.

Writer Roberto Suro dissected the Hispanic vote into some of its component parts.  While some elements may be more socially conservative, he pointed out that the Puerto Rican vote in New York, New Jersey, and Connecticut is among the most liberal in the country, voting upwards of 85% Democrat.  I’d add that the next generation of Cuban voters, with only second- or third-hand knowledge of Castro’s depredations, is also proving to be more liberal in its voting.

As for the first point, Obama flack Dan Restrepo wasn’t shy at all about calling legalization, anything short of citizenship, “second-class status here in the United States.”  If the deal is some sort of legalization without citizenship, expect to hear a lot of that phrase.

Suro also had this to say, on a somewhat more mundane level:

I have to respectfully disagree. If you look back over the last 10 years or so of failure in immigration policy-making – actually more than 10 years, 15 years, 20 years, depends on how far back you want to go – one of the developments, particularly since the mid-2000s, has been the emergence of a fairly vigorous immigrant-rights movement in this country, and a litigation power and a protest power that didn’t exist before.

All of you have talked here, as if you missed the key to all immigration legislation in the past, maybe it will be different this time, has been in the details. So, “a legalization,” this means nothing.

There are two things we know from past experience about the nature of these proposals.

One is that a legalization proposal is going to be a giant game of chutes and ladders, with all kinds of qualifications, a process for getting into it. There are going to be right to the last minute, bargaining over, “let’s set the start date here, or here,” and you’re tossing a million people one way or the other depending on a deal that’s made in one of those gilded rooms in the Capitol building, when it goes to conference, right? So we know that.

All that stuff will be litigated. It will be the process – the process of legalization itself, given the current framework, is designed to be long. So it is going to be litigated, and it is going to be a process that people are going to be going through for a long time.

And it will be full of potholes, full of questions about implementation, rights to counsel. I mean, we’re talking about taking a framework now, legally, that is intensely hostile to the legal rights of the foreign-born.

The other piece of the architecture of immigration policy that we can be pretty confident about is that as you build an umbrella under which certain people are sheltered, life outside that umbrella gets harsher. That means that whoever doesn’t get in, is going to face a much more wicked situation, in terms of much higher rates of deportation, fewer rights when you –

People are portraying this as, “Oh, by April we’ll pass this law, and then Latinos will forget about it.” It will be a living, breathing controversy in Latino communities for the next decade.

Suro’s point is that these battles and gaps are inherently unavoidable.  There’s simply no way to take immigration off the table.  And in all of that litigation, and all of those bureaucratic debates, expect the Democrats to pose as the champions of the Hispanics, dragging out resolution of each and every issue as long as there is electoral advantage to it.

None of this is to suggest that Republicans shouldn’t rethink where they stand on immigration.  The current system is a mess on many levels, and needs to be reworked to better serve our national interests.  If the election helps do that, it will be a net plus.  And a smart policy can also help avoid cementing self-inflicted wounds.  But the sooner Republicans understand that they’re not going to walk away with 50% of the Hispanic vote any time soon, if ever, the better-positioned they’ll be to craft a policy that makes sense for the country, as well as to avoid making concession to Democrats who will work the negotiations with elections in mind.

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Legislating (Not) By The Numbers

Thursday’s discussion of the proposed in-state tuition for children of illegal immigrants in the Jewish Community Relations Council (where I represent the Denver Academy of Torah as a school), provided an object lesson in the difference between government and the real world.

This bill differs from prior years’ efforts in that it creates a third category of student rates.  Currently, there is Out of State, which is supposed to be priced higher than the cost of educating the student and in-state with the COFF subsidy, which is supposed to be less than the educational cost.  The third category would be “In-state without the COFF subsidy,” which would supposedly be, Goldilocks-style, exactly the cost of educating the student.  In this way, claim SB12-015’s advocates, the new law would cost neither the university nor the taxpayer.

The problem is that this claim is completely unverifiable.

The legislature has been trying for years to get the University of Colorado to tell it how much it costs to deliver a bachelors degree-quality education to a student, without result.  The university either can’t or won’t calculate and divulge that number.  While it’s true that there’s no immediate outlay from the state treasury, there’s simply no way to guarantee that the bill won’t end up as a net cost to the state’s already-strapped public universities.

The bill pretends to get to the “at-cost” number programatically, rather than through actual accounting. The program numbers can’t be any better than guesses.  At the state capitol, this is what passes for reality.

Whatever one thinks of the politics and the wisdom of passing such a bill – and there are strong arguments on both sides – it’s clear that the proponents’ arithmetical arguments don’t add up.

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