Immigration

Obama Playing With Constitutional Fire on Amnesty

A presidential action may be lawful at the same time that it is unconstitutional.

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White House/Instagram

Earlier this week, President Obama made it clear that he will soon offer some form of limited amnesty to about five million foreign nationals who are currently living illegally in the United States. He will do so by issuing an executive order to federal officials who oversee immigration directing them to undertake a course of action that, if complied with individually by all persons whom he designates as eligible, will cause the federal government to remove the threat of deportation from those who meet the standards he will lay down.

Can he legally do that?

To address that question, we need to start with the principle that a presidential action may be lawful at the same time that it is unconstitutional. The president has the legal power to defer deportations. The power is called prosecutorial discretion. This is a power traditionally recognized as inherent in the presidency that enables him to defer or modify all federal law enforcement.

The theory is that the president needs the ability to allocate resources as the changing times, emergent events, and public needs may require. Thus, he can, for example, defer prosecuting bank robbers and aggressively pursue drug dealers. That wouldn't mean that all bank robbers would go free; it would mean that either state prosecutors would pursue them, or they'd wait for trials until the drug kingpins were caught and convicted. But he could set some free if he wished.

The check on the exercise of prosecutorial discretion is gross abuse, which is typically demonstrated by either improper executive motive or effective nullification of law. I don't know what the president's motive is. If it is political, I suspect his efforts will backfire. He cannot grant citizenship or the right to vote.

If his motive is humanitarian or moral, I understand him. Under the natural law, people have the right to travel and live wherever they wish. The existence of our natural rights is not conditioned upon the place where our mothers were at the times of our births. And from a free market and historical perspective, immigrants have enhanced the economy as they move up the demographic ladder.

But the president's behavior has serious constitutional dimensions that go far beyond the motives in his heart, and his oath is to the Constitution, not to his heart.

If the president nullifies deportations on such a grand scale that the effect is the nullification of federal laws, then he has violated his oath to "faithfully" execute his presidential obligations. The Framers required that every president swear to do his job "faithfully" to serve as a reminder to him that his job requires fidelity to the enforcement of laws with which he may disagree. The American people, Congress and the courts need to know we have a president who will enforce the laws, whether he agrees with them in his heart or not. Without presidential fidelity to the rule of law, we have a king, not a president.

By conferring temporary legal status upon foreign nationals who have not achieved it under the law, providing they meet criteria that he will establish, the president affects huge numbers of persons and produces a result that is the opposite of what the law requires. Can the president's exercise of his prosecutorial discretion constitutionally nullify a federal statute? No. Can the president's exercise of his prosecutorial discretion effectively rewrite a federal statute? No.

It is unconstitutional for the president to nullify federal law. It is unconstitutional for him to refuse to enforce laws that affect millions of persons and billions of dollars. It is unconstitutional for him to refuse to enforce laws merely because he disagrees with them—particularly laws that pre-existed his presidential oaths. And it is unconstitutional for him to rewrite laws, even if he is doing so to make them more just.

Every president since Dwight D. Eisenhower has deferred some deportations. President Reagan deferred deportations for about 100,000 families of foreign nationals in 1987 under his reading of the congressionally authorized 1986 amnesty law, and President George H.W. Bush did so in 1990 for about 350,000 foreign nationals under his reading of the same law. Each of these was based on a principled public presidential reading of the words and purposes of a federal statute. Obama does not purport to read and interpret the current immigration law; rather, he effectively rewrites it.

What can Congress do? Congress can pass legislation to invalidate Obama's executive actions. Yet even if it did so and overrode his certain veto, it has no assurances that Obama would be bound by the new legislation. He refuses to enforce the plain language of well-established and never judicially altered federal statutes. What assurances does Congress have that he would follow any new statutes that he has vetoed and that regulate his behavior?

Is the blanket refusal to enforce federal laws that profoundly affect five million persons—and in the process severely straining the social services of all 50 states—an impeachable offense? The president is playing with constitutional fire, and impeachment is the only constitutional remedy available, short of 25 months of a constitutional conflagration that he has ignited.

NEXT: Brickbat: Special Victims Unit

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  1. It is unconstitutional for the president to nullify federal law.

    Even if his motivation is “humanitarian or moral”?

    1. By what standard of “morality”? I had thought libertarianism was against government enforcement of any particular morality.

  2. Process isn’t important (until it is). Only results matter (until we don’t like them).

    1. Elections have consequences. Since “they” won Obama must “do something” about it.

  3. Poor Andrew. Still believes in a bunch of hokum scratched on a parchment like a thousand years ago.

    1. But enough about his Catholicism.

  4. Can the president’s exercise of his prosecutorial discretion constitutionally nullify a federal statute? No. Can the president’s exercise of his prosecutorial discretion effectively rewrite a federal statute? No.

    Is that going to stop him? No.

  5. Why the carping? This is a step toward open borders. The Mexican one anyway, but we’ll take what we can get, right?

    1. Depends. Some libertarians believe in the constitution and rule of law. Some believe in natural law. I think you can believe either and still be a libertarian, but I’m not a purist or arbiter.

      1. Since when does any government respect natural law?

        1. None do. But when have we seen a libertarian government?

          1. Governments can never be libertarian. Only individuals can be. And if too few of us are, then we end up with big, oppressive governments.

            1. And if too few of us are, then we end up with big, oppressive governments.

              Well said.

      2. Does this natural law state that some may trespass upon the property of others? Or aren’t property rights part of this natural law of which the Judge and others speak?

      3. A specific interpretation of “Natural Law” is malleable. It’s better to depend on a written constitution. I don’t think this is a new idea.

        1. But, as we have discovered, “a specific interpretation” of even a written constitution is “malleable”.

      4. I’m a huge fan of Bird Law.

    2. I believe in open borders in a libertarian society, but in a semi-socialist country that has a political party that largely wins elections through tribalism, and stoking racial hatred.

      In a libertarian society immigrants have to work, here they can get welfare.

      In a libertarian society immigration is limited by the amount of economic opportunity available. If there are no jobs available people stay home, but here again they can get welfare.

      In a libertarian society immigrants have to take part in the economy, and so there for have to assimilate to some degree in order to that effectively, but here in America we not only have welfare, but a political correct school system that will make sure their kids never have to learn English, or god forbid identify themselves as Americans.

      1. Shit we need an edit button.

      2. I’m not settled on this myself. I completely agree in a libertarian society you can and should have open borders. However I can’t see restricting a natural right based on the poor government we currently have. I would never buy we can’t end prohibition until we end welfare argument so I lean towards open borders but recognize there are real world consequences to that policy.
        /sorry grammar people for my run on sentence

        1. Is open borders a natural right? Aren’t individual nations allowed to set their own immigration, and border policies? We don’t live in libertarian world, but a world of over 200 nation states, made up of various cultures, some of which might not be completely compatible with the idea of libertarianism.

          It would be one thing for me to visit say Finland for a week, but a very different thing to demand that they make me a citizen, allow me to participate in their political process, even though I know next to nothing about their language or culture. To me at least that seems odd.

          I think libertarianism works great for individual states (especially the United States, since it was basically founded on those principles), but I not sure how it works globally, or internationally.

          1. I don’t think freedom of movement includes citizenship. I think of it like free trade. Obviously you need to move goods to other locations to have free trade, but the ship’s crew doesn’t get a say in local politics. Labor is just another trade good. But, I am hesitant to support open US borders because people stay and use resources instead of trading labor. Also citizens can’t trade their labor on equal footing because of regulations that illegals don’t comply with.

            1. Does freedom of movement include residence then? What happens when you get a sizable minority in your country that aren’t allowed to take place in the political process? It certainly starts to look bad, and what if their from a radically different culture, like say Saudis in Sweden?

              I don’t know, it’s certainly a complicated issue, one made more complicated by progressive policies.

              1. True. Eventually, there will have to be a path to citizenship for these people. Though it is worth noting that their US_born children will still be citizens. It’s not as if the disenfranchized state is hereditary.

              2. I’m not sure residency is a problem. It would still change demographics because children would be citizens, but I would guess in a positive way. Positive because people actually worked to get where they were going.

              3. Hahlelujah! An honest discussion of how to follow a libertarian philosophy in a pre-existing, less than perfect world! Thank you all!

                I too am very torn at this point because of the mess that has been made of the system since the 60’s. Fully open borders do indeed seem to be a natural right, but at the same time, paying for welfare for individuals who are simply showing up take advantage of our largess directly affects me too.

                The biggest issue is how much damage Obama is doing to the structure of the Republic. Between Bush-43’s “signing statements” and Obama’s “executive orders”, it seems that the authority of the legislature has been broadly usurped by the executive. Impeachment and removal would be constitutionally catastrophic, but we may be nearing that as the only method of bringing the system back into balance.

            2. He’s not actually offering them citizenship. He’s giving them work permits and freedom from deportation.

              1. …work permits and freedom from deportation.

                What do they need those for? How many are stopped from working just because they don’t have a permit? How many people have been deported lately? And of those who get deported how many just come on back? Obama isn’t doing this to help out anyone already here. It’s to gain votes and to invite others to come here.

                1. Obama isn’t doing this to help out anyone already here. It’s to gain votes and to invite others to come here.

                  This, I believe, is the real reason for his action. Obama is looking to the future of a much more progressive USA. But what he’s doing here will be undone unless he’s followed by another two-term progressive–very unlikely.

          2. Any libertarianism re: the states is enforced by the central federal government, which is NOT libertarian.

        2. You can’t have an open border between a libertarian society and a non-libertarian society.

          Think of it as a garden with a fence around it to keep out predators. You can open the fence between two, or many, fenced gardens but all is destroyed if the fence between the garden(s) and the outside is removed.

          You can discuss the rights of the predators if you like, but if you open the fence and let them in you will shortly cease to have a garden.

          1. That doesn’t matter. For one brief shining moment there would be a libertarian paradise, though quickly trampled by the herd of buffalo the latest idealists just allowed in. It’s the memory that counts.

        1. but a political correct school system that will make sure their kids never have to learn English, or god forbid identify themselves as Americans.

          While that maybe true in the Southwest, I find it not true else. Besides, as an applied linguist with more than 15 years experience in the field, I can confidently tell you that cold, hard, quantitative research has shown that two-way bilingual immersion (example: half the class speaks English as a native language, half the class speaks the target language. For half the day instruction is in English, and the other half is in the other language) is the most effective way to learn a language in a k-12 setting. However, a large number of people would squeal like stuck pigs if you proposed that, so the proven methodology is considered impolitic. So public school ESL kids are forced to learn in a mediocre manner, just like everything else in public school. But unlike native children, instead of blaming the school, we’ll blame them, just this one time.

          1. I heard a story (I forget where now, I think NPR) that said that people who immigrate as adults typically don’t speak English very well, though they may become functional depending on their surroundings.

            Their children tend to speak both English and their parents’ native language fluently.

            Their grandchildren usually know very little of their grandparents’ native language.

            So even if learning English were some huge deal (it isn’t), this is a problem that corrects itself in, at most, a generation.

            1. “So even if learning English were some huge deal (it isn’t), this is a problem that corrects itself in, at most, a generation.”

              I’m sorry, but how can anyone be American in any real sense if they can’t speak English?

              If you accidentally got some papers in the mail that made you a Danish citizen, would that make you anymore Danish then you are right now, with no knowledge of the language or culture?

              1. I’m not really concerned with anyone being an American in any “real sense”. Honestly, I’m not even sure what that means. We don’t have hundreds of years of shared history and culture in this country to tap into. The country is large and geographically diverse, which has led to myriad lifestyles, artistic forms, architecture, cuisine, etc. People have come here from all over the world, bringing their own customs, some of which have blended into the wider culture, some of which haven’t. I’ve spent some time trying to think of what distinctly sets American culture apart and I honestly don’t know. I can come up with some things that set certain groups of American culture apart. Who decides what is and isn’t American? Why does it matter?

                I do know that when my great grandparents came here, they didn’t speak English. By the time they died, they could function, but they weren’t fluent. Insofar as there is something that can be identified as American, I think they typified it. They were pioneers (not in the sense of settling the western frontier, but of leaving their homes to go to a new and unfamiliar place), they worked hard, they valued individual responsibility, and they built themselves up out of almost nothing. Language had nothing to do with it.

                1. I’ll add that living in Quebec for a few years really changed my view regarding language. I’ve seen first hand how it is used by xenophobes to stoke division and ostracize minority groups.

                  I am *NOT* accusing you or anyone else on the board of being xenophobic. But language definitely can be and is used by those who are.

                  1. Personally, as a matter of basic practicality I’d never consider living in a country whose laws I couldn’t read and comprehend. It’s easy enough to get fucked when the law is in your native tongue.

                    As far as what makes America uniquely “American”, being a proposition nation in and of itself probably qualifies. Ironically, not having any particular ethnic or geographical claims kind of becomes a culture itself. I’d say pretty much everything distinct about this social experiment is embedded in the Declaration of Independence.

                    1. I’d say pretty much everything distinct about this social experiment is embedded in the Declaration of Independence.

                      I think I’d agree with that bit right there. “We hold these truths to be self evident, etc. etc.” That is the essence of America.

                    2. I’d say pretty much everything distinct about this social experiment is embedded in the Declaration of Independence.

                      I think I’d agree with that bit right there. “We hold these truths to be self evident, etc. etc.” That is the essence of America.

                  2. Quebec is probably one of the more benign examples of two different groups who see themselves as different cultures trying share one country together. When you have a permanent population in one geographic area of the country that sees themselves as being a completely separate people then you have a lot of headaches.

                    America may be somewhat diverse, but whether you’re in New England, or New Orleans the people consider themselves to be primarily American. Despite this diversity their is a common bond that unites us in some way.

                    Maybe language doesn’t matter as long the people consider themselves American, but I do worry about a large population all from one primary cultural group settling in one geographical area of United States, who don’t have to assimilate due to the welfare state, and are constantly told by progressives how evil gringos stole their land, and are privileged, etc etc.

                    Look at how much the borders of countries have changed throughout the 20th century do to ethnic conflict. There is nothing magical about the United States that prevents that here, and ethnic conflict is not exactly fertile ground for liberty.

                    1. I hear you, but I think fears over assimilation are overblown. Even without the welfare state, 19th/20th century immigrants formed somewhat insulated communities. That is why almost every major city has a Little Italy, a Chinatown, etc. People surround themselves with the familiar when they can. That’s just what they do.

                      Within one generation, if that, those groups were assimilated as much as can be expected. It didn’t require any top-down pressure to learn the language or adopt the culture. In fact, top-down pressure may have prevented assimilation by creating a defensive mentality among those groups. Going back to Quebec, the language laws there have led more people to learn French, but it hasn’t helped the francophone and anglophone communities meld.

                      You’re right that America isn’t immune from cultural strife. But because we don’t have hundreds of years of shared grievances with the tribe next door, if left alone, I think our society does a fine job of assimilation.

                    2. Look at how much the borders of countries have changed throughout the 20th century do to ethnic conflict.

                      Strong immigration restrictions are themselves a form of ethnic conflict, though.

                    3. … I am not sure this follows. It sounds nice, and is really fun to call names, but it is not clear to me that a strong immigration restrictions are themselves a form of ethnic conflict.

                      How is a policy that says “Nobody can come in, not no way not no how” an ethnic conflict? Or, even if it were restricted to a single country, how is that cultural?

                      Take New Zealand. IF they were to pass a law that says “No Australian citizens can come into our island starting today” I would call that a pretty solid immigration restriction. However, ethnically, Kiwis and Aussies are quite similar. You could hardly call it an ethnic policy in that case.

                      I recognize that this is never going to happen (though many Kiwis would like it to, esp. around Rugby world cup season), but it is a counter example that your claim that strong immigration restrictions are a FORM of ethnic conflict.

                      Now, I don’t know your attitudes on the issue, but it seems, WS, that you are preparing to start name calling. Just because somebody disagrees with you does not make them a monster.

                2. E Pluribus Unum used to be the refrain that ran through the concept of “being American”. Not so sure any more, and perhaps it never really was.

                3. As far as ‘shared history’, all immigrants bring with them a history. The bulk of immigrants have been European. That’s where the shared history comes from. The various legends and mythology, stories, values, etc., are primarily European (mostly Western Europe). No ‘history’ is create from scratch requiring hundreds of years to develop.

              2. Bard metal, would you happen to be known IRL as Fry-man

        2. I had to get my parents to sign off on the affidavit saying that they would guarantee that we wouldn’t be on welfare because I wasn’t making enough at the time to be able to prove that I could support us for 5 years.

          When I tell my anti-immigration acquaintances about that requirement they never believe me.

          1. It’s because the focus is on illegal immigration and not legal immigration. I think most Americans are okay with legal immigrants, but they don’t want people streaming across the border unchecked.

          2. My personal take on this is that the vast majority of people in this country don’t realize how fucking evil the INS (or ICE now) is.

            I would love it if they passed some law requiring every citizen to have to go down to their local INS office and file some simple form. Once they realized just how incompetent INS is, they would have a completely different take on the immigration issue.

            Most of the people I talk to who are anti-immigrant really don’t realize how horrible the process for getting legal status is.

            1. We’ve made legal immigration extremely difficult, and burdensome, while at the same time putting out as many magnets as possible to encourage illegal immigration.

              I don’t know if it’s just unbelievable incompetence on the governments part, or if some evil master mind wanted to create the current situation we have.

            2. We’ve made legal immigration extremely difficult, and burdensome, while at the same time putting out as many magnets as possible to encourage illegal immigration.

              I don’t know if it’s just unbelievable incompetence on the governments part, or if some evil master mind wanted to create the current situation we have.

              1. Occam’s razor and the nature of government make incompetence most likely, but it’s also a handy perennial political issue, so it’s hard to say.

                1. The root of the problem is that INS is the one agency that can really fuck with you. They can imprison you like the IRS, but they can also deport a loved one if you give them any shit.

                  Everyone who goes there fucking tugs their forelock and bows and scrapes because if they fuck up their chance to get a green card their whole world implodes.

                  The fuckers at the INS know this and know that they can act with impunity because who is going to complain?

                  (In case you can’t tell, I really, really detest the INS)

            3. I know your pain, Jimbo. The INS makes your local DMV look like a model of efficiency and customer service. Are there any other federal bureaucratic offices where every day is guaranteed to see someone leaving in tears? Maybe the IRS, like you said…

              1. Even the DMV can’t throw you in prison without trial, or deport your wife.

            4. See my comments below on the horribly inhumane way we punish people who have been in the US illegally, even if they have married a US citizen and have US-born children.

              The law that you have to leave the country for 10 years, if you have been in the US illegally, no exceptions even for people who are now legally married to a US citizen, should be done away with.

              1. isn’t it also a law that if you are legally trying to become a citizen you can’t return to your native land for 10 years even if a family member their is gravely ill. this for some people is reason enough to not bother to become legal since they can come and go otherwise.

              2. “The law that you have to leave the country for 10 years, if you have been in the US illegally, no exceptions even for people who are now legally married to a US citizen, should be done away with.”

                i know this is asking a lot but…if you came here illegally too bad. Take personal responsibility for your actions. Come here legally and you do not have to worry about this.

                1. There isn’t actualy any legal way for many of these people to come here legally.
                  The way the law is written it is effectively impossible to get a permanent’s resident visa unless you either have a BS or an immediate US citizen relative.

          3. my parents to sign off on the affidavit

            Maybe they don’t think the affidavit will be enforced. After all, so many other agreements are not. And who is going to look up that affidavit?

        3. I work with a guy, he make more then double what I make, he earns well beyond the poverty line. There is no way he actually qualifies for food stamps, but he has an EBT card nonetheless. People game the system all the time.

          1. Fuck that guy. And fuck living in this country where people like that are excoriated that behavior.

            1. or aren’t

          2. Oh God, I thought you were about to say something about making $3000 a week working on the internet.

        4. As a condition of issuing my wife a marriage visa, we had to sign an affidavit of support, stating that I had enough income to support her for at least 5 years. Furthermore, both she and I (even though I am a natural-born citizen) are ineligible for TANF, SSI, Food Stamps, and Medicaid.

          Well that’s because, like a dope, you went through the proper legal channels. Although technically illegal aliens are also not eligible for many of those programs, it is not legal in some states to inquire about immigration status (bear in mind the administration of those federal programs is often undertaken by the state in which the recipient resides), making enforcement difficult. You can also get the paperwork processed with forged documents, which is also how many illegal immigrants get past employer e-verify requirements. You’re liable to get cut off pretty quickly that way though. And, of course, children are eligible for programs that also benefit the parents. Particularly if the children are US-born citizens, in which case they are eligible for all of the programs you listed.

          And, of course, we’re talking only about federal benefits. State benefits can also be very generous in certain places, and those tend to be the same places where immigration status may not be used as a basis for discrimination.

          Doesn’t matter, of course, if you’re a deontological on the issue.

        5. Yes, but your wife is not from one of the favored immigration areas. That’s your problem.

          We only want immigrants from the 3rd world.

      3. Good points. But you missed the fact that little foreign labor would be needed if the US did not pay its OWN citizens NOT to work through welfare payments.

        1. Another good point, and I wonder how low-paying all those low-skilled jobs would be if the people working them weren’t burdened by taxes, and regulations?

      4. Your version libertarian society would depend on a libertarian world to exist. Incoming immigrants that care nothing about natural rights can vote your libertarian republic into whatever cesspool country they came from.

    3. There is no such thing as open borders in a market based world.

      Only socialism and massive government force creates open borders since it forces property owners to give up their rights to keep people from using their property.

      A market based world would not be borderless but have up to 7 billion borders as each person who owns property would have their own borders. With no socialist road system getting from place to place would require negoication with each property owners and it would be foolish of them to allow unlimited use of their property.

      1. Comparing national immigration policy to the situation of a private land owner is fatuous. You don’t own the entire country.

        1. You don’t own the entire country.

          But you might own a piece of property in a collective association.

          Just look at gated communities. Their HOA is a perfect example of what you would expect libertarian property management to look like. Many HOAs might be quite liberal, or restrictive depending on the goals and temperament of the owners.

          DJF’s point is correct that in such a world, there would still be restrictions on movement- sometimes against the preferences of a property owner. For example, I might own property in an HOA that has rules about who is allowed in the gate. I may want to have a different landscaper, but the contractual obligations of my HOA Agreement wouldn’t allow that. My “freedom of contract” is completely intact, it’s just that I’ve already contracted with one party that obviates my ability to contract with certain others in certain circumstances.

          I don’t see anything wrong with this picture from a Property Rights or Natural Law perspective. Once private property owners join together in a covenant, they are basically relegating certain decisions to that covenant.

          1. I don’t know any HOA that claims the power determine who is allowed to visit the members homes.

      2. this is not true. I live in a town that was founded before it was a state and guess what the locals built roads to further their needs without government assistance and input. Yes once in a while people would build a road or a dam across someones property and this became an issue that was either resolved through the exchange of money or by force. Note it requires force to get the money and to avoid all the senseless violence they handed the duty of force over to local authorities ie the state. Unfortunately the state has become to forcefull.

      3. Hang on. How can “socialism and massive government force” create freedom? At best, socialism is saying “This is your property that we are going to force (your word) you to allow another person to use.”

        Now, I agree, in some distopian world where everybody is a greedy bastard stereotype, this may be the case. But, by and large, this is not what history has shown for the past, oh I dont know, couple thousand years.

      4. I actually suspect that in a “market based world” we would still end up with some public property as a convenience.

    4. “This is a step toward open borders.”

      Your optimism is endearing, but it’ll never happen.

      1. No open borders even between Canada and the U.S (relatively similar standards of living), let alone between the U.S. and Mexico. No Canadian would want an influx of undesirable Americans coming across the border and ruining the landscape.

  6. Impeachment? Never going to happen. No matter what happens, no politician wants to be part of the “mob” that lynched impeached the first black president.

    1. Never is too strong a word, but it remains quite unlikely unless he goes further than he has so far. I suspect the EO, whatever it is, will not be egregious enough to drum up popular support for impeachment by itself, but I think it pays the cover charge to enter the impeachment bar, so that it at least becomes thinkable.

      Personally, I think he and a number of administration officials should have been impeached long ago. If the press weren’t pushing down on the scales with all of their weight, might have even happened.

      1. They might start impeachment hearings that will last until 2017, but that is as far as I will allow. I will send you 5 crisp American dollars if he is impeachment and removed from office before his term is up ProL.

        1. Yeah, but 5 crisp American reserve notes will only be worth about 2.85 by then

          1. He’s on to me.
            /jumps through window

        2. I’d agree, but this president really doesn’t know when to stop, nor does his hubris seem to have any limit, despite a string of failures.

          Hubris, ate, then nemesis.

      2. As long as big media continues to provide cover for the Democrat party impeaching a Democrat president will not happen. Republicans’ best strategy is probably to take this to the courts and fight over it for years and try to set legal precedent limiting executive authority. At best this is optimistic, at worst it’s nothing more than tilting at windmills – the real fix would involve repealing laws which over the years have delegated Congressional authority to the executive branch. Republican’s enjoy being able to circumvent Congress when there is a Republican president, and I doubt any legal challenge will continue if a Republican wins the presidential race next year. The end result will be further consolidation of executive power. Neither party is willing to give up power when they have the opportunity to do so.

        1. Neither party is willing to give up power when they have the opportunity to do so.

          No, but they’re only too willing to see the other party give it up. The presidency’s power was really crippled under Nixon because of the Watergate shenanigans, but it has slowly come back. Congress’s failure to remove Clinton helped that return immensely. And of course, 9/11 brought even more power to the presidency.

    2. Impeachment? Never going to happen. No matter what happens, no politician wants to be part of the “mob” that lynched impeached the first black president.

      You mean Cigar Bill? 🙂

  7. So there are two claims about the immigration system being “broken’

    1. That not enough people are being allowed to immigrate to the US legally
    2. That too many people are in the US illegally

    So Obama is going to fix this by allowing more illegal’s to stay in the US by not enforcing laws. But he has fixed neither problem since the illegal’s are still illegal and by not enforcing the law the US he will encourage more illegal’s to come to the US

    1. You are correct.

      It’s nothing more than high political theater.

    2. more cheap labor to ensure more profits for business owners.

  8. It is interesting to me that the bastard is announcing this on television during prime time. This tells me that he thinks this unpopular move will gain him popular support or he is giving the entire country the finger.

    I can’t decide which is more likely.

    1. Legacy. He doesn’t care if it’s popular,so I vote finger.

      1. He’ll need to import a Spanish-language teleprompter from China.

    2. Look, there are historians that would still rank Buchanan as the worst president ever. Obama’s legacy is too important to leave that title uncertain.

      1. Well, to be fair, he’s already the worst *Black* president.

        1. And the best. Hmm. I’m voting for the next black president that comes along so this ranking will have mean.

          1. “Run, Ben, Run!”

          2. Meaning.
            / self durrp

      2. Historians’ rankings of presidents tend to favor the most blood thirsty and authoritarian, so Obama should do pretty well.

  9. At this point what’s left of the constitution is a socked foot sticking out of the wood chipper.

    https://www.youtube.com/watch?v=LyPhsD1vHGk

  10. This discussion almost always devolves into “Open borders!” vs “Welfare state!”.

    It’s a red herring.

    I think we all realize that open borders, even if it is a desirable goal (some will disagree on that), is simply not practical right now, at least not on the Mexican border.

    At the same time, most immigrants, including the illegal ones, come here to work and are net contributors to the economy and tax base. And their kids aren’t dragging down the public school system. That you can find crappy public schools with lots of immigrant children is not proof that immigrant children cause those schools to be crappy. There are plenty of public schools with low numbers of illegal immigrants that are awful.

    The open borders vs welfare state debate just distracts from a horribly broken immigration system and practical steps that can be taken to improve it, like increasing the number of visas that are issued and massively streamlining/simplifying the process to get them.

    1. It’s not just welfare. Illegal immigrants have work advantages that legal immigrants/natives don’t have. They don’t have to work for minimum wage, pay for workmans comp, social security. Most don’t follow OSHA guidelines or carry proper insurance. All these expense they don’t pay lead to a competitive advantage over legal workers.

      1. I tend to raise that issue around here a lot as well (and get roundly shit on for it). Paying a guy $20 an hour cash with no regulatory compliance costs is actually a huge savings compared to hiring a worker at minimum wage and complying with the law. And the employer mandate will exacerbate that situation quite a bit. Which is why I don’t really understand why the CoC is so gung-ho for giving current undocumented workers legal status. That pretty much defeats the purpose.

        1. Once they have legal status, they don’t have to work under the table any more and thus can demand to be paid minimum wage and get all the benefits.

          1. Right. I don’t understand why the Chamber of Commerce, which represents businesses, would be interested in that happening.

            1. Right. I don’t understand why the Chamber of Commerce, which represents businesses, would be interested in that happening.

              Because businesses don’t want to be breaking the law? It’s quite easy. Businesses that illegally hire labor will ultimately undermine law-abiding businesses and make terrible “Sponsors” of the CoC, since they likely won’t be around very long before they run into trouble- tax dodging charges, usually.

              The CoC wants all this illegal shit swept off the table. Currently there is a high risk, cheap-labor pool (illegals) and a low risk, more-expensive pool (legals). The former is pretty much off limits to the CoC businesses, so they want to collapse those pools together. The labor won’t be AS cheap as it is now, but that was in a pool they couldn’t access easily or without risk. The pool they CAN access easily and with less risk will get lower price pressure.

        2. The disparate work regulations are an issue. But making it easier to get legal status would solve that.

          I don’t think millions of people are coming here illegally so they can participate in a grey market for labor. They are coming here illegally because the legal avenues are completely inadequate.

          I bet lots of illegals would gladly take advantage of at least some of the protections that legal workers get. If they don’t, well, that would actually be a pretty good testament to how much labor laws actually hurt workers. But again, my guess is that most would want to come out of the shadows. If employers didn’t like it, well, what are they going to do? They can’t kidnap people and force them into slave labor.

          1. I don’t think millions of people are coming here illegally so they can participate in a grey market for labor.

            That’s likely not their conscious intention, anymore than any of us gets up every day with the intention of being fully-compliant labor market participants, but their status as a grey-market commodity is part of the reason their labor is in demand.

            It’s only really an issue at the very bottom of the skills pool, too, so most people who aren’t low-skilled don’t much give a shit. The difference between a red-blooded ‘murican high school dropout and a Spanglish speaking immigrant fresh from the Rio Grande changing your kid’s shitty diapers or washing your dishes is pretty moot.

            I bet lots of illegals would gladly take advantage of at least some of the protections that legal workers get.

            I’m sure they would – I don’t see many legal workers turning them down. I was just saying I don’t understand why the CoC would see that as beneficial to its members since businesses currently can realize a large cost savings by using the grey market. The CoC isn’t exactly in the corner of labor.

      2. SO? There shouldn’t be a minimum wage or any of that other stuff either.

        The illegal immigrants are actually embodying the libertarian ideal a lot more than the legal ones.

        What’s more libertarian than living wherever the you want, working for whoever you want, for any wage you want, without asking permission from any state?

        1. Those regs shouldn’t exist, but they do, and because they do, being able to operate outside of them is a competitive advantage. It’s similar to how regulatory capture works.

          1. Right. People should be free to contract to work under their own terms. But saying what should be doesn’t change what is. Americans do get hurt by illegal labor because of competitive advantage.

          2. Techically, legal US citizens can operate outside of the regs if they want, too. Nobody is stopping you from illegally working for less than minimum wage. Everyone’s can break the law equally.

            1. Except illegals are already breaking the law by being here, they risk less than a legal residents.

              1. The enforcement of pretty much any law in that situation is deportation, which seems bad, but compared with a lifetime criminal record and the kind of financial decimation the IRS can exact is actually pretty kind. The consequences for a citizen or legal resident are longer-reaching.

                1. The IRS takes a dim view of citizens working off the books – a very dim view.

    2. So you just want to proclaim that more visas and more streamlining is something we should do but don’t want to fight over it.

      You win, everyone else shut up.

      1. No. If you think more visas and more streamlining is bad, let’s have *that* debate.

        The open borders debate is an interesting philosophical one, but it it bears no practical relation to current immigration policy or how to fix it.

        1. If we are not going to talk philosophy, then we just go with who has the majority, I think its bad and most Americans are against it, so I win.

          The US has had more immigrants in the last 50 years then in its history and it has not improved the place.

    3. I agree, and more importantly, the philosophical distinction is the last thing on Obama’s mind. A good analogy is debating anarchy vs limited government while a drunk politician driving his car into the side of a bank. But Obama is drunk with power.

    4. and then all the states can be like California.

        1. ….and minus Silicon Valley and Hollywood, which bring in a lot of money to prop up the welfare state.

    5. Are suggesting the govt is capable of taking practical steps? Streamlining a process? I agree that immigrants are a net bonus, but I have zero faith in any organization whose default position to problem solving is more paperwork and pencil pushers.

      1. I’m an optimist. More paperwork and pencil pushers is the current default position for government. I don’t believe it has to be. The American Revolution and the Constitutional government that was set up happened. I believe it *is* possible to recapture that spirit. Otherwise, what I am doing here? I should just go out and do my best to game the system and get mine until it all comes crashing down.

    6. No, most immigrants are not net contributors to the economy and tax base.

      What most immigrants do accomplish, and what the GOP elites like about them, is to suppress wages across the board.

      At the low end, we keep unskilled labor inexpensive to control wage costs. This has the indirect effect of keeping various social subsidy rolls high since the benefits are greater in total than the unskilled wages.

      At the high end, we have engineers and scientists (STEM) unemployed and underemployed as they are replaced with foreign workers. Most STEM graduates end up accepting non-STEM positions at lower wage rates.

      As students decide not to go into STEM fields based on logical analysis, we fret and provide more student loans and new programs to con them into it.

      This of course is why the big tech companies and the Chamber of Commerce continues to push immigration. This is also why the GOP will make lots of noise but find themselves “unable” to stop it.

      1. No, most immigrants are not net contributors to the economy and tax base.

        I may have misspoke. It appears that if you look only at taxes and expenditures, immigrants may be a net cost. But when you take into account the economic impact, they are a net gain. See here.

        What most immigrants do accomplish, and what the GOP elites like about them, is to suppress wages across the board.

        Only because minimum wage laws and welfare programs keep low-skill wages artificially high. At any rate, legalization would fix this.

        At the high end, we have engineers and scientists (STEM) unemployed and underemployed as they are replaced with foreign workers.

        Around 100,000 H1-B visas are issued per year. The total STEM workforce is nearly 8 million. So H1-B visa holders make up about 1-2% of the STEM workforce. Furthermore, the STEM unemployment rate is below 4%, and prior to the recession was below 3%. Incomes in STEM fields are 1.7x higher than the average income across all sectors. So I fail to see how foreign high-skilled workers are hurting natives.

        Beyond that, your line of reasoning assumes that jobs should preferentially go to Americans, regardless of whether they are the best qualified for them or offering the best price for their labor. That is not how free markets and free trade work. Since I’m a libertarian, I’m in favor of both of those.

        1. Additionally, even if foreign STEM immigrants do suppress wages discernibly in the country, that is peanuts compared to the alternative. When companies cannot find local (immigrant or native) labor for their STEM jobs, they outsource. I would rather have an immigrant working, paying taxes, and raising a family here in the states than for all that money, experience and economic activity going over seas.

          What the “They suppress wages” people fail to see is that sometimes the wages demanded ARE just too high and employers have many options regardless of whether or not you let more labor in.

  11. I have not seen the criteria which are being used to determine who will be legalized, but I suspect that what he is referring to are people who would otherwise be able to obtain legal residence, EXCEPT for the fact that they have been in the US illegally.

    For example, there are millions of illegal aliens who have married a US citizen, or have an adult US citizen child, who WOULD be able to get legal status, but cannot apply because they would be forced to leave the country for several years in order to get it.

    Not many people are aware of some of these more perverse provisions of the US immigration law. The fact that you have to actually leave the country for years in order to get legal residence that you would otherwise be able to obtain easily is particularly bad. Sometimes you have families with young children where the mother is illegal, the father is a US citizen, and the mom would have to move back to Mexico so that she can apply to be a US resident, even though she is married to a US citizen and has a US-born child.

    1. In the interest of clarity, the president can’t change anyone’s legal status. This would just defer enforcement of immigration law against people who qualify. The president could change his mind, or a new president could rescind the executive order, and those who qualified for the deferred action would be right back to square one.

      1. It would certainly be preferable to get rid of the onerous and inhumane aspects of US immigration law, rather than just defer deportation by executive order.
        But I don’t see where anyone has proposed doing that. All of the immigration reform proposals I have seen leave the basic underlying laws in place and just legalize the people who are already here illegally.

        Note. Here’s an article on what I’m talking about:

        http://www.alllaw.com/articles…..ident.html

        If, however, the immigrant entered the United States by unlawful means, such as having been a stowaway or crossing over the border through a fence, adjustment of status is not an option. The only possibility is to apply for the green card through “consular processing,” meaning the immigrant will attend an interview at a U.S. embassy or consulate in his or her home country. That, however, carries a risk of not being allowed back into the U.S. for many years — three years if the period of unlawful presence was 180 days or more, and ten years if the period of unlawful stay was one year or more.

        So we’re basically talking about cases where, in order to become legal, the husband or wife of a US citizen must risk being separated from her family for TEN YEARS, if the government finds out she was in the US illegally.

        That is hugely inhumane.

        1. Yep. And it is worth stressing that crossing the border illegally is about as close to a victimless crime as you can get. Even if you believe (I do) that governments can justifiably put some restrictions on who crosses the border and how, you’d be hard pressed to find someone who was harmed by the act of crossing the border illegally.

        2. I was just clarifying that “legalized” isn’t precisely what is happening with this executive action, not making any comment on the policy itself. FWIW, I don’t think rule by executive fiat is a good way to go even if it (temporarily) gets you toward a policy end that you desire.

        3. horse hockey

          Let me invade your house, steal your stuff, and then whine because you fail to invite me to come over and stay for the weekend.

          Are you really going to tell me you would be ok with you.

          1. America isn’t “your house”.
            There are plenty of other Americas who are totally happy to invite mexicans into their homes, and indeed, marry them and have children with them.

            You want to take some other American’s WIFE away.

            1. I think it’s American. If not, there doesn’t seem to be much difference.

        4. I have a better idea. Simply state that anyone illegally in the country is exempt from protection of US law, and let the citizenry sort it out. I guarantee this problem will get sorted post haste, with no government involvement at all. What could be more libertarian than that?

        5. Not really. The husband and children can live in her country, right?

  12. Thank you Judge Napolitano. I was wondering if anyone here was ever going to make the principled argument against what this president is doing, and you didn’t disappoint; you never do. You’re one of the rare gems around here in what has increasingly devolved into a pile of crap over the last few years or so.

    1. I guess some of us are more easily disappointed than others. Judge Napolitano generally has good instincts, but there’s a number of issues where he has odd blind spot regarding liberty, and immigration is one of those issues.

  13. It’s pretty funny to watch libertarian principle run smack dab into the very we’ll-constructed wall of Obama derangement disorder. I say if people want to come here and work more power to them and that the constitution be damned but I’m not afflicted with inchoate hatred of a certain politician.

    1. Do you even know how to construct a well reasoned argument?

      1. I’m not sure AmericanSocialist even understands why a reasoned argument is superior to an emotional bleat. He would probably agree that it is, but only because someone in authority has informed him that this was the case. Not because he actually understands the logic behind it.

    2. What a dumbass comment. Did you even read any of the posts? No, I’m guessing not. You just placed everyone here into a mental stereotype and didn’t bother actually checking to see if the visions in your head matched reality.

      1. Yes I did read them. Here’s one

        “Historians’ rankings of presidents tend to favor the most blood thirsty and authoritarian, so Obama should do pretty well.”

        ^^This in an article about a president removing deportation authority? I mean I know the Obama Stalin has killed millions by mandating insurance for everyone, but I’m not sure how letting people who have lived in the US for 20 years qualifies as bloodthirsty. Obama is a tricky trickster so I’m sure there’s something I’ve missed. Do you think rand paul is going to go to the bathroom in the congressional naughty, naughty vote that our new friends the Republicans are going to hold on this?

        1. Seriously, I’m asking this honestly. Do you think this is a good argument? Do you think you are making a good point?

          If you do, let me point out why that isn’t the case.

          The comment you quote came about because someone speculated that Obama was making this announcement now, and in this manner, because he wants to leave a legacy. So someone made a snide remark about how historians tend to favorably view wartime presidents and how Obama has not actually brought the peace he promised. Because people like to make sarcastic jokes, and sometimes the thread goes off on tangents.

          You are trying to imply that, because you can find *some* comments not germane to the issue of immigration, that *no* comments on the subject of immigration can be found. That is equivalent to saying that because you can find some living things that are animals and not trees, plants don’t exist.

          If you want to make a substantive comment on immigration, then respond to a comment on that subject, or come up with one of your own.

          1. “So someone made a snide remark about how historians tend to favorably view wartime presidents ”

            So you think that this particular poster was kidding? I’ve read their posts before and I think he/she is pretty serious.

            “Substantive comment on immigration”

            Sure. I think people who come here to work should be allowed to do so without harassment from the police.

            1. snide
              sn?d/

              1.derogatory or mocking in an indirect way.

              Were they kidding about historians favoring wartime presidents, or about Obama failing to keep us out of foreign conflicts? No, I don’t think they were kidding. I also don’t think they were wrong. I do think the comment was snide, which doesn’t mean what you seem to think it means.

              I think people who come here to work should be allowed to do so without harassment from the police.

              So you agree with the majority of the commenters here on this issue, then? Why not say that, or debate one of the ones who doesn’t agree with you, instead of making fun of libertarians on unfounded grounds?

            2. And, if you read the above notes, you will see that most people on this forum agree. In fact, “without harassment form the police” is practically a chorus here. Which, of course, you should know, since you spend no small amount of time here. In fact, you are my personally favorite glutton for punishment/troll/sockpuppet (you are usually much funnier than PB, and your grammar isn’t as bad as Tony).

              People who come here to work should be allowed to do so without harassment from the police. Yes. But this isn’t actually saying anything helpful or adding to the discussion. Unless, of course, what you are adding is “Rule of law be damned!” in which case you do not do a very good job of living up to your handle, either the A or the S part.

        2. Thank you for your comment. I rarely get to interact with such a level intellect. Your ability to distill a nuanced thread about the possibility of a libertarian immigration policy in an increasing corporatist-socialist state to a single off hand remark is truly amazing.
          If your purpose was to persuade people you may try making an argument that pertains to the theme of the thread.
          Surely having created your website discussing the successes and perfection of Marxism you could lend an intelligent point about proper immigration policy. (Actually looking at your website it would probably be made up of excuses of why these people are fleeing their socialist enclaves for the beacon of capitalism as a function capitalist propaganda infecting these poor unsuspecting souls)

          1. “Looking at your website…”

            Mand, relax, it’s a joke. I just put it there because commenters here think that anyone who thinks rich people should pay more in taxes heart Pol Pot. So, it was my subtle way of giving them the finger.

            1. PS., it is not very subtle. Or funny. Mostly is discredits you.

              1. His fucking handle discredits him.

    3. No, you are not affected by hatred of a certain politician.

      Of course, you are also not capable of recognizing that others can disagree with you for principles of their own.

    4. and that the constitution be damned but I’m not afflicted with inchoate hatred of a certain politician.

      Well why would you be, american socialist? The two of you are birds of a feather. Certainly neither of you are “afflicted” with any inchoate love of either the country or the constitution.

      1. “inchoate love of either the country”

        Just speaking for myself… You can say that again. This banana republic is long past it’s prime and is oozing its rot all over the kitchen table. You’ve got to be out of your mind to join the armed forces– unless you are doing it for mercantilist purposes.

  14. Dear Reason Mag,

    I’ve been reading the articles on breitbart.com and this article this morning on your fine website. Basically it’s the same thing! I’m shocked because I thought we were the libertarian vanguard and not the right-wing-80-year-old -crazy-uncle-crank vanguard. Maybe subsequent articles on how we smoked e-cigs in a cool bar once, went to Burning Man and smoked out Larry Harvey will help those of us who are a little confused about a liberty writer telling us it’s a bad thing when the federal government deports people who work hard and don’t bother their neighbors.

    1. You know that if you have principles, you do not change your views to match the crowd, or to avoid matching the crowd.

      I am so pleased that breitbart.com is making some sense these days. Maybe I should check it out …. and again maybe not.

    2. Last sentence: “Bad thing”= “good thing”. Geesch, when surrounded by so much double talk it gets harder and harder to construct a proper sentence

      1. Freudian slip. Which, of course, is wher eyou say one thing but mean your mother.

  15. Under the natural law, people have the right to travel and live wherever they wish.

    So property rights are out the window now? Or perhaps you believe the government is unable to own property and that anything not owned directly by a private citizen is fair game. If the government *is* able to own property, then that government should also have property rights which would include the right to prosecute trespassers. Do you disagree with this, too, then?

    1. Maybe we should get rid of private property. You mean I have to pay taxes for the police to evict squatters off the mansion of a equities trader? Fuck that. Taxes are indeed theft.

      1. It’s funny how you sell your policy ideas on the pretense that they really go after rich billionaires.

        You know: instead of reality.

      2. Maybe we should get rid of private property.

        Sure, Slick – we can start with your life and the fruits of that life. I’d bet we could find a work gang somewhere to throw your ass into to make sure you’re paying your fair share to society.

    2. America isn’t your property.
      It is a whole lot of other people’s property, lots of whom are happy to hire immigrants.

  16. Some libertarians believe in the constitution and rule of law.

    Perhaps someone here can point out to me the wording in Article I, Section 8 that gives the federal government the power to deport people or stop them from crossing a border absent probable cause that the particular person is committing a crime that the federal government is empowered to enforce.

    Not seeing the wording that allows the deportations in the first place, and if so, then Obama has the power to use his pardon powers to nullify an unconstitutional law. Not the approach I’d recommend, but it would be a start.

  17. Oh, FFS again with this racist uber-Republican Andrew Napolitano? Bad enough that I had to read him going full Coulter about the “abortionist’s vaccuum” the other day. Now with the straight-up Daily Caller rhetoric about impeaching Obama.

    Really all he left out of this one is “Barack Hussein Obama” to hit the full 10/10 as far as bullshit partisan hackery.

    Hey Reason, if I wanted to read turgid partisan crap there is pretty much the entirety of the internet for that. I guess you could spin this as “anti imperial presidency” as far as a point of view. But you could also just pick up Rush Limbaugh and every other of those despicable cockwombles too for those. Until their tribe of sheep gets a president into office, at least.

  18. the principle that a presidential action may be lawful at the same time that it is unconstitutional.

    This makes no sense.

    The constitution says the president can pardon anyone. Would Republicans and their melanin-averse voter base calm down if he just pardoned the 5 million instead of applying prosecutorial discretion? That would be actually monarchical and less democratically accountable, but it is in the precious constitution (c) Rush Limbaugh.

    1. Violations of immigration and naturalization laws are not crimes. This little nuance actually has a lot of important ramifications, not the least of which being that such violations cannot be pardoned.

      If you assault me, the President/Governor can pardon you and keep you out of jail, but I can still sue you for causing harm to me.

      1. In case that second part seems like a non sequitur, there is a difference between criminal and civil offenses. Only criminal offenses can be pardoned. Civil offenses involve an aggrieved party and his right of redress cannot be taken away by the President.

        Of course, in the case of immigration offenses the aggrieved party is the U.S. Government. That does leave the President, as representative of the aggrieved party, with the prerogative to not seek redress. However, Congress has the power to override his prerogative and compel him to act in the interests of the government.

        1. The Constitution empowers the President to “Grant Reprieves and Pardons for Offenses against the United States” (U.S. Const. Art. II Sec. 2 Cl. 1). It does not say that the offense must be a criminal offense.

  19. If your society can’t function without Berlin Wall like policies, then you have bigger problems than the wall not being tall and scary enough.

  20. If the GOP plays this right, which they probably won’t, they could ensure themselves a victory in 2016 and for years into the future (my preference would be a legitimate third party to kick both sides butt). Throwing tantrums and talk of impeachment is not the right approach. Talking up that what Obama and the Democrats are actually doing is ensuring that a billions of tax dollars will be going to government support of former illegals is the answer. So you come here and get free health care and now you will get social security? The economic argument is the winner.

    I’m all for some form of amnesty but only if from here on out there is legitimate border security and immigration policy but the economic impacts must be addressed. Living in California has taught me that the cost of immigration policy for the past 20 years has cost much, much more than it has benefited US citizens. And the lack of enforcement has bred abuse of thousands of illegals.

  21. What the Judge misses is this, if the law is already unConstitutional, then a President deciding not to enforce it is not doing something unConstitutional (literally the exact opposite, actually). The argument people should make is “the law is unConstitutional so the President isn’t following it”.

    For a President to enforce an unConstitutional law, he is violating his oath. To enforce an unConstitutional law, even one both passed by the legislature and upheld by the Court (that invented its monopoly on what the Constitution says), is to break the Constitution and his oath.

    Now, there’s no way that this is what Obama is thinking, nor would a progressive ever make the argument. But they could be technically correct under some circumstances.

  22. The judge’s argument that “natural rights” support criminal immigration fails the second that a criminal alien makes use of even one publicly funded item. If they travel on a road or attend a school, they are no longer exercising “natural rights” but stealing from the people who funded the resource.

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