Friday, November 21, 2014

What Really Happened Last Night?

Last night the president finally made good on his six year promise to reform the country’s broken immigration system. Using his executive powers, the president announced a plan that will protect 5 million undocumented immigrants from deportation; allowing them to legally live and work in this country for a period of three years.

The president, seeking a middle of the road compromise between those who would grant amnesty to all 11.7 undocumented immigrants living in this country and those who would round all of them up for deportation, made it clear that his authority was limited: “This is not granting amnesty or a pathway to citizenship. Only congress can do that.”

The Republican response was of a nature that can only describe as “apoplectic.” So palpable was their rage that many were literally frothing at the mouth. Even some of the most moderate and reasonable conservative political analysts were worked up in lather over the “imperialist” president’s “power grab.” Steve Schmidt, former manager of the Mc Cain Campaign and by all accounts a reasonable voice in all things politic, was furious, stating pointedly that by taking this executive action the president had squandered ANY possibility of ANY legislation getting passed by the incoming congress.

As expected, calls for impeachment, law suits and defunding were plentiful.

There are two old adages in politics: one is that when you are complaining about the process you are losing on the policy. The other is that you can always tell how thoroughly you have defeated your political opponent by the magnitude of their frustration and outrage. The president has backed Republicans into a corner on this issue and the only thing they can do about it is rant.

Somewhere in the recesses of all the cheers and jeers is the truth about what happened last night. Did the president act within his authority or did he violate the constitution in what amounts to an illegal abuse of power? And depending upon the answer to that question; what can the president’s political opponents do in response. Here are the facts.

The president’s actions are not in violation of his powers under the constitution. There is a provision within the immigration law called “deferred action.” This provision grants the executive branch the almost unlimited power to “defer” administrative actions within the law. The president cannot eliminate provisions within the law but he can temporarily defer them if he deems it necessary. The president did not grant amnesty or a pathway to citizenship. He did not violate or rewrite the law. The president has elected to “defer” deportation of certain classes of undocumented immigrants for a period of three years. Every president since Eisenhower has used their executive powers to make changes within the scope of the immigration law. In recent years Reagan, Bush 41, Clinton and Bush 43 all sited deferred action with impunity.

Republicans have a number of options to consider.

They can sue the president. Over the past six years they have threatened to sue the president over a whole host of issues. None of these threats have found their way into the courts. Recently Speaker Boehner threatened to sue the president for delaying the corporate mandate under the ACA. That suit has yet to be filed. The reason that these idle threats have no substance is because Republicans have no standing in these matters. In order to proffer such a complaint they have to prove standing…that they have been in some way injured by the president’s actions. As elected officials they have no standing to make that claim. In order to sue they would have to find someone who was injured by the president’s executive action.

They can refuse to approve the funding mechanisms that allow the president to move forward. The problem here is that most of the funding for immigration policies under Homeland Security comes through fees and fines that do not fall within congressional prevue. The small amount of funding congress CAN withhold will have little if any affect on the president’s plans moving forward.

In a fit of anger they can shut down the government. The last time Republicans tried that approach their approval rating dropped into single digits. Not the way you want to start your term majority party in both houses of congress.

Republicans can refuse to pass any legislation that would further the president’s agenda. Over the past six years they have proven quite adept at this course of action. However the voters have made it clear that they want to see their elected officials get things done. This past November they made their frustrations clear by voting out the party in power. There is every reason to believe that voters will do the same in 2016 if progress is not evident.

They can impeach the president for abuse of power. Here they would have to prove that the president violated the constitution. As stated previously the president is on solid legal ground. He has not violated the current law nor has he created a new law. He has simply deferred a portion of the immigration law for a temporary period.

There is one other option. The president’s executive orders will not go into effect until January 1, 2015. It will be 180 days until the first application under the new orders can be filed. There is ample time for Republicans to act.

During his remarks the president made it quite clear that he is willing to work with congress to provide a permanent solution to our immigration problems. He offered the incoming congress a clear path to accomplishing that goal; an unfettered path that the newly elected Republican majority can follow without delay to overturn his executive orders.

They can pass a bill.

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