Timothy Sandefur, Tamar Jacoby, John Tierney, Mike Baker, and The Independents Co-hosts Assess the Wisdom and Legality of Obama's Executive Actions on Immigration


You could organize your thinking about President Barack Obama's proposed executive actions on immigration into four questions: 1) Is it constitutional? (Shikha Dalmia says yes, Andrew Napolitano says probably not.) 2) Would it produce a good policy result? (Dalmia again with a yes, Planet Conservative with a Hell No.) 3) Is it wise from a political and small-d democratic point of view. (Peter Suderman, for one, has his doubts.) And 4) Does it significantly address the root problem of our messed-up immigration system? (I'll take this: Not remotely, no. We need to focus on more legal visas first, not ever-more creative ways to deal with the problems created by not having enough legal visas.)

My answers to 1-3 are, roughly: 1) Probably, though putting the words "probably" and "constitutional" in the same sentence is usually a dealbreaker. 2) Maybe 70-30? It's not too hard to see negative consequences in the absence of other reforms, though perhaps it's heartless to rate the lifting of deportation-fear for millions of people as only worth 7 points out of 10. 3) I for one vote no. In part, because the president (in my understanding) already has the power to engage in prosecutorial discretion; he just wants to make a big stink.

Which is a point I attempted to make on last night's episode of The Independents, in a segment alongside New York Times science writer John Tierney and ex-CIA operator Mike Baker:

On Tuesday's show, Kennedy chewed over questions 1 and 3 with Tamar Jacoby, president of ImmigrationWorks USA, and Timothy Sandefur, principal attorney of the Pacific Legal Foundation:

Reason has a rich treasure trove of immigration-related material, including this special August 2006 issue, a memorable October 2008 flow-chart of how legal immigration works, and a recent eBook edited by Shikha Dalmia. Below, you can enjoy a Reason TV playlist:

NEXT: Even the Washington Post Warns that Obama's Unilateral Action on Immigration Sets a Very Dangerous Precedent

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  1. How about posting last night’s 2 Minutes Hate? That way viewers know who to blame for The Great Thanksgiving Guacamole-Off.

    1. Double-Fist!

      1. A new low for the show and it didn’t come from Kennedy. Who would have thought?

    2. Fist of Etiquette|11.20.14 @ 1:19PM|#

      How about posting last night’s 2 Minutes Hate? “

      Bernie Maxsmith’s ne’er do-well twin-brother actually archives them @ his failed-porno website

      1. Next you’re going to claim Santa Claus isn’t real.

        1. Oh, he’s real all right… but he’s actually an overweight communist subversive with some crazy plot about ‘cultural resource reallocation’.

  2. Which is a point I attempted to make on last night’s episode

    There was your first, and most critical, mistake.


    1. Caveat: except Ron Paul and the purple aura.

    2. Watch Welch again making his point. He hurries through his explanation, and in his eyes you see a mix of fear and surprise as he’s allowed to continue unmolested by his co-host.

  3. Matt,

    How can you consider this Constitutional? The entire system is built on the President as chief of executive enforcing the law. If this is okay, then any President gets a retroactive veto over any law he doesn’t like. There is no way the founders intended that or that they thought it was okay and the force of law should be subjected to the politics of impeachment. That is ridiculous.

    And if you think this is good policy, you are going to be disappointed. All this is going to do is poison the well and ensure no one outside of the most committed open borders people have any interest in compromise or doing anything but closing the border in the future. After Obama does this, why should anyone trust the assurances of the open borders crowd again? And for that price, you get nothing but a couple of years of deferred deportation.

    1. “How can you consider this Constitutional? The entire system is built on the President as chief of executive enforcing the law. “

      Yes. And this allows for the president to provide guidelines for prosecutorial discretion within the framework of existing law.

      The relative constitutionality of the execution of discretion such seems to hinge on whether the decision to prioritize is intended either to ‘ration resources’ in the execution of the law (i.e. focus efforts where they are most needed), or whether the effect is to directly thwart the intent of the law.

      Bush routinely signed bills and then declared portions of them ‘moot’ and refused to enforce them. People were up in arms because it was being seen as a de facto line-item-veto.

      By applying his executive order to specific provisions of well established law, Obama actually avoids similar accusations of over-reach that was directed @ Bush. Specifically the ‘signing-but-not-enforcing’ law part.

      This paper here has some interesting discussion on the point

      1. What Obama is doing is worse. By acting on existing law rather than new law that he is signing, Obama is giving the President a retroactive veto or ability to modify any law on the books.

        It is one thing to say “I don’t think portions X and Y of this bill are Constitutional and I am therefore not going to enforce them” as a President signs the bill, which is what Bush did. It is quite another thing to pick up the US Code and decide this or that law really should only apply in this circumstance.

        That is what is going on here. Obama is saying the INA just doesn’t apply to people in these circumstances and wont’ be enforced. If he can do that, a future President could decide the tax code doesn’t apply to corporations that engage in activities he likes or the environmental laws don’t apply to say the Great Lakes area. There is no end to it.

        1. “John|11.20.14 @ 2:03PM|#

          What Obama is doing is worse. By acting on existing law rather than new law that he is signing, Obama is giving the President a retroactive veto…”

          This sort of application of discretion has been previously affirmed in the supreme court. In ‘faithful execution’ the president is seen to have some power to allocate resources in the effective implementation of law. When policies are long-established, the change in the way they are applied over time is deemed relevant to the executive.

          IOW, the ‘constitutionality’ question is one area the president is given discretionary authority; the other is in ‘allocation of resources’. How much latitude is given in the latter is an open question.

          If the actions were seen as directly contradictory to the established law, there would be grounds for a challenge. This doesn’t at first glance seem to be the case – even his provision allowing for giving people green cards is actually just a procedural-tweak away from established practice (albeit a significant one – not requiring illegals to ‘re-enter’)

          I’m no lawyer; the few things i’ve scanned on this issue seem to be clear that there is precedent that the president does (and should) have the authority to make the kind of tweaks that seem to be forthcoming. The 10th amendment center has some commentary on the subject

          1. f the actions were seen as directly contradictory to the established law, there would be grounds for a challenge

            1. yeah, but under current law, parents of naturalized children are already eligible for green cards – its just that the procedure requires them to leave, and re-apply which has historically been seen as a bureaucratic means to artificially ‘self-deport’ people.

              Given that he’s not changing the law, but how it is being applied (*also emphasizing stricter enforcement against undocumented people with any criminal records)… it is hard to argue that it is anything *contrary* to existing statutes.

  4. I think before determining Constitutionality, it would help to know the details.

    1. He announced the details yesterday. He plans to give out special status to various illegals who meet a given criteria.

      There is nothing in the US code that empowers him to do that. The theory is that Obama as chief executive has the discretion to decide when to enforce the immigration laws and when not to. It is taking the concept of prosecutorial discretion from “refrain from enforcing the law in this particular set of facts” to “categorically decide not to enforce an entire law against this group of people. It effectively gives him the power to add and alter the US Code without going to Congress.

        1. Up to four million undocumented immigrants who have lived in the United States for at least five years can apply for a program that protects them from deportation and allows those with no criminal record to work legally in the country, President Obama is to announce on Thursday, according to people briefed on his plans.


          The rest of the article goes on to talk about just which Illegals Big Daddy plans to promise not to deport.

          Understand, none of this is in the Immigration and Naturalization Act. It is all just rules arbitrarily imposed by the Administration using its alleged “prosecutorial discretion” in immigration cases.

      1. The vast majority of the people who are being given temp visas are people who are married to or parents of US citizens.

        This is because of provisions of US law say that if you’ve been in the country illegally, you have to leave the country for up to 10 years before you can reenter – even if you’re married to a US citize and have cildren.
        This basically makes it impossible for many people to legalize their status, even if they are married to a US citizen.

        Just imagine for a minute what it would feel like if you married a woman who was an illegal alien, and she had to leave the country for 10 years in order to get a green card by marriage.

        1. The vast majority of the people who are being given temp visas are people who are married to or parents of US citizens.

          You think. But you have no citation for that or anything other than blind faith in Obama to think it will work out that way. Good luck with that.

          Beyond that, even if it is true, it doesn’t make any less of an unconstitutional act of tyranny. Sucks to be the spouse of an illegal but sometimes life is like that. The law is what it is.

          1. There’s plenty of details in the news reports that say that it will apply to people who are parents of or married to US citizens.
            This is a huge, longstanding problem with the immigraiton system. The large number of people who are otherwise eligible for legal status, but who can’t get it because they came here illegally initially.

            Libertarians ought to be in favor of giving people the freedom to work and live with their families in the country of their choice.
            Since which has libertarianism been all about “The law is what it is.”

            if the law is unjust, fuck the law.

            1. Libertarianism does not mean tyranny. And when this precedent gets shoved up the country’s ass in a million different ways it will be the craven people like you who have no principles other than power, not Obama, who will be to blame.

              You are a tyrant Hazel. Plain and simple.

              1. A. How precisely, does freedom of movement equate to tyranny?

                B. No principles? Hazel’s position is based upon libertarian principle.

                1. A. How precisely, does freedom of movement equate to tyranny?

                  Just because the tyrant ignores the law to give you more freedom doesn’t mean giving him the power to ignore the law is any less tyrannical. When you walk away from the rule of law you are giving your liberties to the good will of whatever top man is in charge.

                  Come on Fransisco. You are not the smartest person on here but you are sometimes better than this.

                  1. He’s not ignoring the law. As he’s not funded to fully enforce the law, he’s prioritizing who he deports.

                    So do you want the hardened criminal to go or the mom who has an anchor baby?

                    1. He’s not ignoring the law. As he’s not funded to fully enforce the law, he’s prioritizing who he deports.

                      Bullshit. Do you honestly think if they gave him a trillion dollars he would act any differently? Come on. And his funding has been the same for years. And now he does this?

                      You would never believe that in a million years in any other circumstance.

                    2. And moreover, he is doing more than just not deporting people. He is going to give them cards and status. If the concern is resources, just don’t deport them until you get around to it.

                      That is a total sham and you know it.

                    3. No I don’t believe he’d do it if he had a Trillion dollars, and a trillion dollars wouldn’t begin to cover it.

                      Yes, he’s using his executive authority to prioritize how the money is spent. Yes he is doing it in a way that most aligns with his political ideology. Yes, you don’t like it.

                      You don’t seem to get it John. This is an unsolvable problem, both politically and financially. Any solution will involve amnesty as rounding up and deporting 15M people is not financially feasible. It would cost TRILLIONS.

                      You have two options. You come up with a solution that involves amnesty or you do nothing.

        2. No worries. Thanks to the provisions of the ViolenceAgainst Women Act, all she needs to do is claim that her Old Man hit her and/or planed to human traffic her. Then it’s all aboard the express train to Green Cardville, baby!

      2. That said, as a hypothetical. What if, the President issued an exectutive order stating he will pardon anyone convicted of a Federal drug crime in a state that has legalized drugs. The prosecutors could still go after people in those states but are unlikely to do so know that their efforts would be wasted.
        Does this change your position any?

        1. This isn’t using the pardon power. The pardon power is broad enough to do what you describe. It is what Ford did for the draft dodgers. But the pardon power is not applicable here because these people have not been convicted of a crime. And even if you said they were under threat of conviction for being here illegally, pardoning them doesn’t give them status or keep them from being deported.

          1. I’m not sure I understand your last sentence. The crime committed is to overstay a visa or entering the country without a visa. Just because we deport people administratively as their punishment doesn’t mean that theoretically a person in the country illegally couldn’t ask for trial. Or wind up in jail if they lose the trial.

            1. I think the point here is that the pardon power is only available to people who have lost in court. If you are granting clemency to people who haven’t been convicted, it’s an amnesty.

              Read Ford’s proclamation. He makes a clear delineation between those who have not been convicted and those who have.

              Those who have been convicted get clemency (“I have this date established a Presidential Clemency Board which will review the records of individuals within the following categories: (i) those who have been convicted of draft evasion offenses as described above, (ii) those who have received a punitive or undesirable discharge from service in the armed forces … or are serving sentences of confinement for such violations.), and those who have not are no longer under threat of prosecution (“who has not been adjudged guilty in a trial for such offense, will be relieved of prosecution and punishment for such offense if he …”).

            2. Clemency saves you from jail not deportation. There is a difference. Clemency and pardon don’t apply to immigration status.

    2. The American people are stupid and can’t be trusted to interpret the details correctly.

  5. Yes it is constitutional.
    Yes it will produce a good policy result.

    From a Large-D Democratic standpoint it is probably not a great idea politically. Because, despite the boost it will give the Democrats among Hispanics, it is likely to alienate middle-class whites a lot. There’s a reason that the Democrats didn’t just try to legalize 5 million immigrants en masse before.

    This is exactly the sort of thing that will suppress voter turnout, especially among blacks.
    This sort of thing is why they lost the midterms.

    1. If this is constitutional, what executive action isn’t?

      1. War…oh wait

    2. Hazel,

      None of the polls show this is going to give Democrats a boost with Hispanics. Not every Hispanic is a La Raza idiot. And the temporary nature of this is likely to demoralize Hispanics as they see it as a bait ans switch. Lastly, the people who get these cards won’t be citizens and won’t be legally voting. So any boost in support from Hispanics will depend upon the good will engendered in actual Hispanic citizens out of some kind of racial allegiance. That is likely to be a lot smaller than people think.

  6. I’m looking around for the limiting principle on what he is doing here.

    So, what is it? If the President has the unilateral authority to just stop enforcing any law that he chooses, for reasons that have nothing to do with Constitutionality, resources, or anything but his own discretion, why can’t the President just:

    (1) Announce that no one will be prosecuted for securities fraud.


    (2) Announce that government agent will be prosecuted for violating anyone’s civil rights.

    That’s just off the top of my head. Fill in your own law that you really would like to see enforced.


    Me today, you tomorrow.

    1. Is there any irony to Obama adopting the method used to allow whites to get away with murdering blacks during the Jim Crow era?

  7. Which is a point I attempted to make on last night’s episode of The Independents

    …before Kennedy interrupted me to destroy any semblance of a coherent thought or answer.

    I just cannot watch that show until she’s either off it or gagged throughout.

  8. And Bernie, Stating that you want Kmele keep on a leash. RACIST

    1. er, kept

  9. HELP! I’m being repressed!

    I suffer from oppression. I am black, I am a woman. I am bisexual. I am an atheist. Various systems, including a flawed justice system, the patriarchy, institutional heteronormativity, and Judeo-Christian philosophical dominance (in the United States) actively marginalize and repress my experience and limit my social freedom, to the benefit of others unburdened by these characteristics. – See more at:


    People with my hair texture have a harder time getting jobs in media and the corporate world. (Although this has been changing over the last ten to fifteen years. Shout out to Alec Wek and Lupita Nyogo.)

    First of all, her name is Lupita Nyong’o. Stop oppressing her with your inability to spell her name properly, even when you literally have internet access at that exact moment, you goddamn bigot.

    Secondly, I’m sure a woman who just won Best Supporting Actress is going to be super excited she got a ‘shout out’ in a college newspaper.

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