Immigration

Obama's Cynicism Just Screwed Over Undocumented Latinos Big Time

A 5th Circuit panel just blocked the implementation of DAPA, effectively killing the program

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For all practical purposes, President Obama's effort to offer temporary legal status to about five million undocumented aliens is dead. And there is nothing else to blame excpet his own cynicism, chutzpah and incompetence.

King Obama
Foter Creative Commons

A 5th Circuit Court three-judge panel this morning reaffirmed a previous decision by a Texas district judge blocking the administration from implementing DAPA (Deferred Action for Parents of Americans). This program would have required immigration authorities to "defer" deportation action against undocumented aliens with American-born children. Insead, if they had no previous criminal record, they would qualify for three-year work permits and driver's licenses – not green cards, mind you. There is no doubt that DAPA would have dramatically expanded the 2012 DACA (Deferred Action Against Childhood Arrivals) program, potentially offering relief to about half of the undocumented population.

As I have explained before, contrary to restrictionist rants, nothing about this executive order is unconstitutional or executive over reach. Why? Because Congress has multiple times handed the executive branch vast authority to set immigration enforcement priorities. And it makes complete sense in this case to do deportation triage and focus limited law enforcement resources on targeting criminal aliens who pose a threat to Americans rather than hard-working foreigners with families and children who make a living doing jobs that Americans won't.

And neither the 5th Circuit ruling nor the district court judge actually say anything about the constitutionality of the order. So what was their rap against it? Basically that — as the 26 state attorney generals that had brought the lawsuit claimed — the Obama administration had failed to abide by proper federal rulemaking requirements. Specifically, the administration did not comply with the Administrative Procedures Act by first publishing the proposed changes and giving them the force of regulation.

The process of complying with the APA, if the rule is considered an "emergency" rule is straightforward. An emergency rule can be made effective in 60 days.  Non-emergency rules can take longer. But even if the administration had taken the longer, non-emergency route it would have taken no more time and would have proved far less uncertain than simply ignoring the requirement altogether and getting stuck in a legal quagmire.

So why did Obama not do things the right way? Two reasons:

One, according to Musings on Immigration, a blog run by immigration lawyers is that:

Obama does not think he has to, and by doing so he diminishes the "power" of the presidency. There is recent Supreme Court Precedent backing this position.  In Perez v. Mortgage Bankers Association, the Supreme Court held that:

"The APA distinguishes between two types of rules: So-called "legislative rules" are issued through notice-and-comment rulemaking, and have the "force and effect of law," Chrysler Corp. v. Brown, 441 U. S. 281, 302–303. "Interpretive rules," by contrast, are "issued . . . to advise the public of the agency's construction of the statutes and rules which it administers," Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99, do not require notice-and comment rulemaking."
. . . .
Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures to amend or repeal that rule.

As such, the Obama administration may feel that DAPA and expanded DACA are "interpretive rules" that do not require APA compliance, and that by doing so he would eviscerate the administration's victory in Perez.

Two, vile politics, plain and simple: The Obama administration didn't want to offer relief to undocumented Latinos because doing so would have taken the issue off the table before the next elections and keeping it alive is much more advantageous for Democrats. It gives them a handy tool to demonize the GOP in the eyes of the Hispanics—and of course Republican presidential candidates, especially goofball Trump who is promising mass deportations, are only too happy to oblige.

Indeed, had the president been motivated purely by helping Hispanic families he would have actually issued this order before the last mid-term elections when he had time to follow all the procedural rules and resolve any legal battles before leaving office.

Now, however, there is no clear legal route available that wouldn't run out the clock on his presidency. The administration could appeal to the whole 5th Circuit Court but, regardless of the outcome, its decision would be appealed to the Supreme Court. It could skip that step and go directly to the Supreme Court. But getting the court to accept the case and issue a ruling by June would be a very tall order. It's not impossible the administration could pull it off, but its highly improbable. However, even if it gets a favorable Supreme Court ruling, its not clear that it will have time to implement the program in the six months Obama would have remaining in office.

So, in all likelihood, DAPA is dead – and all because of Obama's political cynicism.

(Incidentally, the 2-1 5th Circuit decision was entirely predictable. I noted back in February that this is exactly what would happen. Both the judges who ruled against the administration were Republican appointees and had refused to stay the disctrict judge's ruling and allow DAPA to be implemented while the legal battles were resolved. In their 135-page decision, they wrote that the judge's decision was "impressive and thorough.")

NEXT: The anti-free-speech movement at the University of Missouri

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  1. I look forward to a respectful and substantive debate in this immigration thread posted by Shikha.

    1. SHUT THE FUCK UP HUGH

      1. Shut up you stupid WOP.

        1. You’re a towel!

          1. No, you’re a towel!

        2. How do you know when to call him a ‘stupid wop’ or ‘stupid kraut’?

          I’m asking.

          For a friend.

          1. Actually “stupid wop” is a bit of a redundancy.

            1. Damn, I should have thought of that one.

      2. Shut up you Garden Variety Idiot?.

        1. No one insults me like Terry Michael.

          (wipes tear)

          1. +a nice lunch or a fruit basket or goat porn or a cockpunch or whatever

            1. What is this goat porn you speak of? Any links?

      3. The second poster was angry today my friends.

  2. “Indeed, had the president been motivated purely by helping Hispanic families”

    Have you not figured out that progressives have mastered the art of it’s the rhetoric and intent that matters above meaningful action?

    1. It’s not even intent, most of the time. It’s just rhetoric and symbolic displays. Barry’s policies have been just as, if not more, destructive to immigrants as any of his predecessors, but he says the right things in high-profile situations and the media refuses to challenge him on the facts, so he’s the benevolent savior while those mean old TEATHUGLIKKKANZ hate Hispanics.

      1. But the feelz are soooo good though!

        /Derp

  3. Obama’s action was much worse than Dalmia presents here. Even if he had gotten away with it, it is still nothing but an executive action that can be reversed at any time. If the plan had worked as Obama hoped, it would have left ever illegal alien at the mercy of whoever held the White House. These cards were never any kind of legal status. The President has no authority to change someone’s immigration status. These cards were always “Big Daddy Obama won’t deport you unless he changes his mind” cards.

    Now that the courts have rightly stopped this nonsense, Obama has once again fucked the Democrats. The people who got those cards don’t understand the vagaries of immigration law. Hell, Dalmia and the Reason staff doesn’t understand immigration law. They actually thought they were getting Green Cards. And now they are being told the truth that they were lied to. Good luck to future Democratic politicians convincing Hispanics that “no this time we really mean it when we say we are going to give you amnesty”. Obama accomplished nothing here except to mobilize Republicans and unrealistically raise the expectations of Hispanics only to disappoint them and show them they can’t trust the Democrats.

    What a political genius that guy is.

    1. Yeah right. Like you gonna tell me his well-thought out plan on resetting, reengaging and reconnecting countries through smart foreign policy isn’t working?

      Next thing you gonna say Lou Reed is dead.

      This guy.

      1. I read that as “well-thought out plan on resettling” and thought of Trudeau for some reason…

        1. Where’s my TRIGGER WARNING?!

        2. Prime Minister Zoolander.

          1. I’m stealing that.

            He’s gonna build ‘The Derek Zoolander School for Kids Who Can’t Read Good and Want to Do Other Stuff Good Too’ because he loves Canada more than Harper.

  4. I’m sorry – I just don’t have any more fucks to give about this subject.

    Now – can we talk about polyamorous Brasilian hotties some more? Please?

    1. I’ve never had many fucks to give on immigration.

    2. If you were thinking ahead, you would realize that changes in immigration could bring more polyamorous Brazilian hotties to our fair shores.

      1. THIS IS WHY I’M ASKING, RN.

        THE REST OF YOU – YOU’RE WELCOME!

  5. The Obama administration didn’t want to offer relief to undocumented Latinos because doing so would have taken the issue off the table before the next elections and keeping it alive is much more advantageous for Democrats.

    “We fight for the disadvantaged when it’s to *our* advantage!”

    1. Dalmia manages to get that wrong too. The bigger issue is why didn’t the Democrats do something when they had the House and 59 votes in the Senate?

      1. Re: John,

        The Democrats have never been interested in fixing the immigration system or the legal status of 11 million undocumented immigrants. Just like they were never interested in fixing the poverty problem or the healthcare problem. The more these problems become worse, the more political points they can score.

        1. That and amnesty is not as popular as its proponents claim it is. If Amnesty is the way to have a lock on the Hispanic vote and having such a lock is the way to a permanent majority, why didn’t the Democrats pass it? Did they just feel sorry for the Republicans or something?

          1. Oh, I suspect it’s reasonably popular. With reliable Democratic voters.

            With swing voters, probably not so much.

            I suspect (again, suspect; the only way I’m a swing voter is between GOP and LP) that most of them what a lot of the restrictionists originally said they wanted – a fairly lenient legal immigration system with strict enforcement of laws against illegal immigration.

            1. Gah!!! Damned squirrels!!

              that what most of them want is what a lot of the restrictionists originally said they wanted

            2. That’s the winning sweet spot, I believe. The devil, as always, is in the details, but “high fence, wide gate” should be what we are aiming for.

        2. The Democrats have never been interested in fixing the immigration system or the legal status of 11 million undocumented immigrants.

          In this regard, we need to start calling it what it is; The War on Immigration.

        3. After all, what would they campaign on if all these “social ills” were fixed? The entirety of the Democratic Party at this point is a giant collection of single issues advocacy groups only bound together by an unearned air of moral authority and simpering sense of collective victimization by rich white men. Remove the issue “glue” holding them together and they will eat each other alive (God willing) as is happening at the University of Missouri.

      2. They were keeping the issue alive for the next election, DUH!

      3. They were too busy trying to accommodate the Tea Party obstructionists who refused to pass healthcare reform!

        In a sane world, I wouldn’t have to note that what I just said was sarcastic.

  6. I get the argument that Obama gets to prioritize the order of deportation, and there’s a logic in deporting the felons first. But this isn’t the “Deport Felons Act.”

    This is the grant immunity to illegal immigrants act. Where does he get the authority for that?

    It’s all good as long as he doesn’t “Naturalize” them?

    1. So Obama gets to choose who gets deported first. Okay, that makes sense. So what are these cards he is giving then other than “come register with the federal government so we know who you are when we finally get around to deport you cards”?

      1. I know see the genius of his 7 dimensional chess! 😉

        1. A President Trump using those cards to know who to deport would be rather delicious.

  7. I agree this time with Dalmia. This was unadulterated cynicism on the part of Barack Obama and Party. He (they) used these illegal immigrants–who by their very status live mostly outside the protection of the law–to attempt a grab at some political points. I’d even assume that he thought he could get away with it just long enough to slide through the general election before having it struck down. If that assumption is true, then he is an even bigger asshole that I thought. It’s one thing to lie to people for their vote (I’m referring to the votes of the citizen friends and family members of these affected aliens), but it’s an entirely worse one to put families at risk of deportation to garner those votes.

    1. Consider this. All of those illegals went and registered with USCIS to get their what turned out to be fraudulent work permits. No imagine Trump wins the White House in 2016 and really does mean what he says about deporting all 11 million illegals. Obama just gave him a giant database of where to find them.

      Take the immigration issue out of it for a moment. The brazen incompetence of that makes it one of the funniest things I have ever heard. That is right out of Monty Python.

      1. …And thereby ensure that the GOP never takes Congress or the presidency again in the twenty-first century, because the sight of jackbooted thugs hauling families out of their homes and into SWAT vans will make the Eli?n Gonz?lez photo look like a fond childhood snapshot. Whether or not you ultimately agree with the notion of forcibly detaining and deporting millions of people, the optics will be horrendous.

        1. Ice and before that ins has been deporting people for decades. No one would care who doesn’t already think borders are illegitimate.

          1. Still I can imagine a large-scale roundup portrayed in the media as a twenty-first century version of the WWII Japanese internment–only kicking them out instead of fencing them in. It would give a great amount of political ammo to the Left. The anecdotal portrayal of split families and abandoned children could be virtually endless. They could do a Walter Cronkite and list the number of deported family members on the evening news every day to keep it in the minds of American voters.

            1. Kind of like the count of dead soldiers they ran on the evening news from 2003 – 2008?

              1. Yes, when due to some arcane trick of mathematics, we were constantly reaching a new high in the number of soldiers killed.

            2. It would give a great amount of political ammo to the Left.

              Sure, but watching them try to distinguish it from FDR’s roundup of the Japanese, and justifying that roundup, will be lulzy.

              1. Good point. Mustn’t disparage the Great Paternalist.

            3. You might want to recall that not much of anyone gave a shit about the Japanese internment at the time, either. In fact nobody much gave a shit for about 30 years, until victimhood became fashionable.

              I’m willing to bet deportations aren’t going to get a lot of sympathy, either

            4. You might want to recall that not much of anyone gave a shit about the Japanese internment at the time, either. In fact nobody much gave a shit for about 30 years, until victimhood became fashionable.

              I’m willing to bet deportations aren’t going to get a lot of sympathy, either

    1. Two beeps.

  8. So let me get this straight. This is completely with the power of the Executive because Congress has delegated their authority. But the reason this failed is that it wasn’t in the power of the Presidency and he had to follow the rules.

    Is that about right?

    1. There are rules for writing and promulgating regulations. Obama was in such a hurry to do this, USCIS didn’t follow those rules. That is what the court ruled on. Dalmia just assumes he had the power to do it in the first place.

      Maybe he did but I don’t see how. Regardless, the court didn’t consider that question because it did not have to. Dalmai just assumes the answer is yes.

      1. Actually, contrary to Dalmia’s assertions, the court also ruled on whether he had the power do it in the first place, and it answered that he didn’t. See Part VII of the opinion.

        1. Yes, Dalmia’s claim that the executive has made similar moves on immigration, in the past, ignores that Congress was in favor of those moves, but was sure to issue immediate proclamations that they weren’t abrogating their rights for anything more than what had been done.
          The fact that one House of the Congress had refused to pass “dreamer” legislation made what Oblama did, absolutely contrary to what the SC has allowed WRT executive orders.

    2. When Congress delegates its authority, it doesn’t typically give carte blanche to the President. The delegation usually goes to a department head and there is usually a process that has to be followed.

      For example, the Controlled Substances Act allows the Attorney General to reschedule a substance, but under ordinary circumstances HHS must conduct a review first and the AG is bound to some extent by their findings.

  9. As I have explained before, contrary to restrictionist rants, nothing about this executive order is unconstitutional or executive over reach. Why? Because Congress has multiple times handed the executive branch vast authority to set immigration enforcement priorities.

    That doesn’t necessarily make it Constitutional, as separation of powers, properly interpreted, should prevent Congress from delegating certain powers. I honestly don’t know if these powers would fall under that.

    Anyway, more fuel for my growing cynicism.

    1. They have the authority to set priorities, but there are limits to that authority. It is one thing to say, “we are going to concentrate our efforts on felons”. It is quite another thing to say, we are going to give green cards to everyone who isn’t. Dalmai is being completely dishonest here.

      1. Dalmai dishonest? Why never! /gets dragged off to the funny farm

        1. Never attribute to malice that which is adequately explained by stupidity.

  10. “For all practical purposes, President Obama’s effort to offer temporary legal status to about five million undocumented aliens is dead. And there is nothing else to blame excpet his own cynicism, chutzpah and incompetence.”

    Shrike blames Ronald Reagan, George W. Bush, and the Republicans–in that order.

  11. undocumented aliens

    Shouldn’t that be undocumented-aliens?

    1. Only hyphenate like that when the resulting construction acts as an adjective.

      Compound adjective they call it.

    2. To build on Deat:

      “aliens” is the noun, “undocumented” is the adjective describing that noun.

      To hyphenate, you have to noun-shift: Undocumented-Alien American. There you go, you have created a new cultural group that the Ds and Rs can fight over.

  12. “As I have explained before, contrary to restrictionist rants, nothing about this executive order is unconstitutional or executive over reach. Why? Because Congress has multiple times handed the executive branch vast authority to set immigration enforcement priorities. And it makes complete sense in this case to do deportation triage and focus limited law enforcement resources on targeting criminal aliens who pose a threat to Americans rather than hard-working foreigners with families and children who make a living doing jobs that Americans won’t.

    And neither the 5th Circuit ruling nor the district court judge actually say anything about the constitutionality of the order.”

    This absolutely false. Part VII of the 5th Circuit opinion, starting on page 54, has an alternative holding that the deferred action program is itself illegal under the INA. It concludes ” DAPA is foreclosed by Congress’s careful plan; the program is “manifestly contrary to the statute” and therefore was properly enjoined.” The opinion stresses at multiple points that “DAPA is much more than a nonenforcement policy.” Did you actually read the opinion?

  13. Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures to amend or repeal that rule.

    As such, the Obama administration may feel that DAPA and expanded DACA are “interpretive rules” that do not require APA compliance, and that by doing so he would eviscerate the administration’s victory in Perez.

    Why the “the Obama administration may feel that” rather than “the Obama administration interpretation of”? That’s really what this comes down to – who gets to interpret the rules on who gets to interpret the rules? Sadly, SCOTUS has already issued disappointing answers in Chevron and Auer, but there are hopeful signs they may be willing to walk back those decisions. Now if we could get them to do something about that abominable third-party records crap.

    1. Sorry, but inventing a new class of work permit is not an interpretive anything. As the court apparently discerned.

  14. Not deporting the law abiding immigration law breakers should be a no brainer because AmSoc and the other Progs have told us illegals don’t vote.

    Or do thaayyy ?

    http://dfw.cbslocal.com/2015/1…..-counties/

  15. http://www.dailymail.co.uk/new…..atues.html

    Since this is an immigration thread, check out Donald Trump’s penthouse in the Daily Fail. Oh my God, it makes Saddam’s interior decorating seem tasteful and understated by comparison. A Trump administration would have more comic value than any Presidency in history.

    1. Maybe we can finally have the Rodney Dangerfield presidency I’ve been dreaming of…

    2. Diis Caeli! That was so garish that I think it gave me cancer!

      1. You say garish, I say “Where I keep my Mac.”

    3. Will you be voting for him because of his decorating tastes, or in spite of it?

      1. I don’t plan to vote for him but because of his bad taste is as gtof a reason as any.

    4. Hmmmm. I think it’s very tasteful garishness.

    5. And people didn’t take me seriously when I said Trump should be sent as an ambassador to Moscow. Hell, he’d probably get citizenship after his term there!

  16. Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures to amend or repeal that rule.

    As such, the Obama administration may feel that DAPA and expanded DACA are “interpretive rules” that do not require APA compliance, and that by doing so he would eviscerate the administration’s victory in Perez.

    Why the “the Obama administration may feel that” rather than “the Obama administration interpretation of”? That’s really what this comes down to – who gets to interpret the rules on who gets to interpret the rules? Sadly, SCOTUS has already issued disappointing answers in Chevron and Auer, but there are hopeful signs they may be willing to walk back those decisions. Now if we could get them to do something about that abominable third-party records crap.

  17. Not to introduce any facts to our little chat, but I had a chance to talk with somebody who actually knows things about Mexico the other day. It was interesting.

    Mexico is actually seeing its birth rate drop down to more developed-world levels, so the cohorts of potential immigrants are getting smaller. They are also developing more of a middle class and a more functional economy, so the motivation is getting smaller.

    The real waves of immgrants, it turns out, tend to come from agrarian societies with big families. This is why the more recent waves aren’t coming from Mexico, but from Central America, where they still have agrarian demographics.

    Straight-line projections of immigration from Mexico are not really usable any more. We’ll still have some, but a lot less. We’ll have to figure out how to manage the wave coming from Central America now.

  18. One other thought:

    This issue falls squarely into my recent thinking abuot libertarians lunging after short-term wins at the expense of more institutional protections for liberty.

    Do we really want to give immunity to illegals, if doing so also means a significant expansion of the President’s power to simply decree things? Do we think that expansion will be used in the future to create more liberty, or less? If we are opposed to giving the President more power, does that mean we are hateful bigots (or, in Dalmia’s precious euphemism “restrictionists”)?

    1. Let’s call it the Goldwater problem.

      There’s a solid set of people who want to see immigration restrictions lifted but recognize that this is the wrong way to go about it.

      There’s another set of people who don’t want to see immigration restrictions lifted; that this is the “wrong way to do it” is just rhetorical flavor.

      Recognizing that, if you are in the latter camp, the label of “restrictionist” is entirely appropriate is hardly the same as rolling over to being called a “hateful bigot”.

      1. I would subdivide set one into teh following:

        There’s a solid set of people who want to see immigration restrictions lifted but recognize that this is the wrong way to go about it and therefor oppose it.

        There’s a solid set of people who want to see immigration restrictions lifted but recognize that this is the wrong way to go about it and support it anyway.

        And if you think Dalmia is using “restrictionist” as anything other than a euphemism for “hateful bigot”, well, I have my doubts.

        1. The point, you missed it.

          1. I guess so. Could you spell it out for me? Is my sarcometer on the fritz again?

            I’m not arguing that “restrictionist” couldn’t be an accurate label for non-bigots who have their doubts about mass migration.

            I just don’t think Shikha is using it that way.

            1. I’m not arguing that “restrictionist” couldn’t be an accurate label for non-bigots who have their doubts about mass migration. I just don’t think Shikha is using it that way.

              And what is “have doubts about mass migration” if not a euphemism for “want to restrict immigration”? I can impute intent as well as you can.

              It’s euphemisms all the way down. Just say what you fucking want (“close the border”, “throw out the illegals”, whatever) and then accept the correct labels accordingly.

              1. Just say what you fucking want

                I have:

                High fence, wide gate.

                What is the correct label for that?

                1. Badnarik voter.

                  Me too, btw.

                2. What is the correct label for that?

                  I don’t know; “restrictionist” is probably not it. Like I said, it’s the Goldwater problem. Dalmia calls everybody opposing Obama’s executive action a “restrictionist” even if they’re not. But that doesn’t mean honest-to-God “restrictionists” don’t exist.

                  Personally, I wouldn’t begrudge anyone calling Dalmia an “open borders useful idiot”, but one needs recognize in the converse that not all “open borders” proponents are useful idiots.

              2. I think his point is that there is a 2nd axis for acceptable processes.

    2. That’s not the intention, and besides, those are completely separate issues. Why do you hate brown people?

    3. Recently(2012 or so), Asians overtook Hispanics as the largest new-comer immigrant group in total numbers. This is rarely mentioned in the press.

      1. Really?! Nationwide? That’s very interesting. It could change the debate and the dynamic. Instead of low/semi-skilled workers fearing for their jobs, we’ll have white-collar/technical workers fearing for their jobs.

  19. I make up to $90 an hour working from my home. My story is that I quit working at Walmart to work online and with a little effort I easily bring in around $40h to $86h? Someone was good to me by sharing this link with me, so now i am hoping i could help someone else out there by sharing this link… Try it, you won’t regret it!……

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  20. I doubt Dalmia reads the comments, so could somebody on Reason’s staff let her know that she utterly butchered this article by misrepresenting what the court actually decided?

    okthxbai.

    1. They’ll get on it right after they do the same for every Richman article ever.

  21. “Obama’s Cynicism Just Screwed Over Undocumented Latinos Big Time”

    Did he not also screw over “Undocumented” people who aren’t from Bean Country? Why focus on “Latinos” here?

  22. Three of the totally loony assumptions in this post:

    1. Hispanic voters are likely to vote in such numbers, and in such areas of the electoral map, as to swing the election.

    2. Shafting them in this manner is to the Democrats’ advantage, because those who are politically active (the most likely to vote at all) will be completely incapable of seeing that Obama shafted them, and

    3. The Republicans are playing right into the Democrats’ hands by being able to say, “They were just about to let five million more immigrants in, but we stopped them,” because the great mass of voters sitting around watching the EU implode on TV every night in 2016 will really really want to see five million more immigrants welcomed in overnight.

    The first thing — the absolutely first thing — necessary to craft a libertarian immigration policy that will go anywhere in the United States is to craft it for the United States as it actually is. Dalmia lives in a dream world.

  23. The first thing — the absolutely first thing — necessary to craft a libertarian immigration policy that will go anywhere in the United States is to craft it for the United States as it actually is.

    Indeed. Welfare state, sanctuary cities, shitty voter security and all.

    1. Absolutely. Not to mention an Even Less Libertarian party champing at the bit to bring in a whole new voting population to exploit for non-libertarian ends.

  24. EO Amnesty is Treason.
    http://www.newswithviews.com/J…..ams291.htm

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