With Republicans set to wage an epic showdown against President Obama’s expected executive action to shield millions from deportation — an action they claim will unleash Constitutional Armageddon — even members of one of the most influential conservative legal organizations in the country are now acknowledging his action is legal.
Sam Stein reports that senior lawyers at the annual convention of the Federalist Society entered into a spirited discussion in which panelists effectively acknowledged the President’s authority to act in this arena:
“I think the roots of prosecutorial discretion are extremely deep,” said Christopher Schroeder, the Charles S. Murphy Professor of Law and Public Policy Studies at Duke Law School. “The practice is long and robust. The case law is robust. Let me put it this way: Suppose some president came to me and asked me in the office of legal counsel, ‘Is it okay for me to go ahead an defer the deportation proceedings of childhood arrival?’ Under the present state of the law, I think that would be an easy opinion to write. Yes.”
Schroeder was speaking specifically about the deferred action program that Obama already has put into place — the one affecting so-called Dreamers who were brought to the U.S. as children. But later, Schroeder expanded his legal reasoning.
“I don’t know where in the Constitution there is a rule that if the president’s enactment affects too many people, he’s violating the Constitution,” Schroeder said. “There is a difference between executing the law and making the law. But in the world in which we operate, that distinction is a lot more problematic than you would think. If the Congress has enacted a statute that grants discretionary authority for the administrative agency or the president to fill in the gaps, to write the regulations that actually make the statute operative, those regulations to all intents and purposes make the law.”
Schroeder is not a conservative, but Stein reports that other panelists “by and large” agreed with his points. And the notion that the large number of people affected by this action doesn’t necessarily make it illegal is important. As I noted yesterday, while Deferred Action for Childhood Arrivals, and Obama’s coming proposal, are rooted in law and precedent, they do go further than pretty much anything attempted before in scope and scale. Critics will rely heavily on this to further the impression that this just feels like we’re crossing into lawlessness. But that doesn’t make it true, as the above law professor notes. And on this point, he’s in agreement with many liberal legal experts.
The idea that Congress created the statute that left the president with the authority to exercise broad enforcement discretion is also key. And at the Federalist Society convention, another legal scholar, one who agreed with Schroeder but also accused Obama of “destabilizing the republic,” added: “If Congress wants to restrain the discretion of the president, they are supposed to do what the separation of powers encourages them to do: Write the statute tightly so that it will be actually administered the way you want it administered.”
Translation: Congress effectively gave the president the authority to do what he is about to do; if Congress wants, it can move to take that authority away.
And indeed, this is exactly what Congress very well may attempt. When Republicans take control in January, they will likely try to pass measures rolling back Obama’s authority to shield large classes from deportation. That’s what they should do. The rub, though, is that many conservatives will demand they go farther, by staging government funding fights to roll back Obama’s actions that could result in a government shutdown.
GOP leaders reportedly don’t want to go this far. But, even if some right-leaning legal scholars understand that this latest move is legal, GOP base voters have been told by their leaders for years that Obama is hell bent on shredding the Constitution. In some areas, Obama certainly has overreached in ways that history should judge harshly. But GOP rhetoric on this topic has been way over the top and even Apocalyptic in the face of all sorts of Obama initiatives. If base voters think GOP leaders should mount maximum resistance to what they are describing as his latest act of supreme lawlessness, who’s to blame them? The result is that even if GOP leaders want to avoid government funding fights, they may not have any choice.
UPDATE: I should have clarified that Christopher Schroeder, who supplied the remarks I block-quoted above, is not a conservative. But other members of the Federalist Society panel agreed with him. The second lawyer I quoted on the fact that Congress should clarify Obama’s authority if it doesn’t like this action, who also agreed with Schroeder, also accused Obama of “destabilizing the republic.”
Also, Stein did note that these lawyers weren’t necessarily speaking for the Federalist Society. But as Stein reported: “by and large, the panelists agreed the president has wide legal latitude to prioritize and shape deportation laws.”
I’ve edited the above to clarify these points.
* EXPERTS: OBAMA’S EXECUTIVE ACTION IS LEGAL: Law professors Erwin Chemerinsky and Sam Kleiner have a good piece running through the legal basis for executive action to defer the deportation of large classes of people and the history of such actions by previous presidents.
One key nugget: This has historically been applied for humanitarian reasons, which may be the justification for Obama’s action deferring the deportation of parents of children who are U.S. citizens or legal residents: To prevent the breakup of families.
* MAP OF THE DAY: Related to the above: Aaron Blake brings us a map that shows that many, many states are home to children in high school and younger who have at least one parent who is an undocumented immigrant. The precise impact Obama’s action on all of these people is unknown, but as Blake notes, this shows that a whole lot of children have a stake in that action; it’s not only about illegal immigrants.
* WHITE HOUSE LOWERS EXPECTATIONS: The Hill reports that administration officials are privately letting immigration advocates know that Obama’s executive action may not shield as many people from deportation as they had hoped. This raises two questions: First, how will Obama justify extending deportation relief to the parents of legal children but not to the parents of DREAMers?
Second, will advocates disappointed by the scope of his action nonetheless rally behind him for the brutal political fight to come?
* KEYSTONE VOTE SHOWS SPLIT AMONG DEMS: In a victory for the environmental movement, Senate Democrats blocked the Keystone pipeline last night, after Mary Landrieu failed to secure enough Dems to pass it for the good of her reelection chances. The Times observes:
Tuesday’s vote exposed to public view some of the contours and rifts in the Democratic Party, where many senators feel they have too often bent over backward to accommodate Ms. Landrieu…They finally revolted, in what they said was a vote of principle against legislation they believe would harm the environment. Throughout her Senate career, Ms. Landrieu, a moderate who was known as the oil industry’s best friend in the Democratic Party, has clashed with the liberal environmental wing of her party.
Fourteen Dems voted for Keystone, but all others opposed it. The environment and climate change are increasingly a priority for the Democratic Party overall, and as such could matter politically in 2016, but divisions clearly remain.
* REPUBLICANS USED TO WANT TO SOLVE IMMIGRATION: The Dem-aligned Americans United for Change has released a new Web video contrasting John Boehner’s 2013 claims that he really, truly wants to address our immigration crisis with his current vow to fight “tooth and nail” against anything Obama does unilaterally to accomplish that. With a major fight looming, a key component of the Dem message will be that Republicans simply refuse to solve a problem they themselves have said must be solved.
* GOP BLOCKS REFORM OF NSA BULK SURVEILLANCE: Last night Senate Republicans blocked a Democratic bill to end bulk surveillance by the National Security Agency and reform spying practices more generally:
Just four Republicans joined Democrats to advance the bill: Ted Cruz of Texas, Dean Heller of Nevada, Mike Lee of Utah and Lisa Murkowski of Alaska. Bill Nelson of Florida was the only Democrat to vote against cloture…Rand Paul, voted against the bill because it didn’t go far enough in his opinion to roll back surveillance under the Patriot Act.
So much for the rise of libertarianism in the GOP…
* GOP STILL FACES BIG GENDER GAP: Scott Bland has a fascinating look at what really happened in the last election, by the numbers. One notable event was the epic collapse of Democrats in the south. There’s also this:
Republicans won male voters 57 percent to 41 percent in the 2014 elections, a whopping 16-point margin, according to the exit polls. That’s slightly better than the GOP did among men even during the 2010 wave election. But Democrats also improved among female voters compared with four years ago, carrying women by a 4-point margin, 51 percent to 47 percent. That 20-point gender gap between men’s support for Republicans and women’s support for Democrats is the largest recorded in the national House exit poll in two decades.
It’s true that the Democrats’ “war on women” strategy fell short in key races. But the broader continuing advantage Democrats have among women is also important and could have major ramifications going forward into 2016.