Immigration

Reason Debate On DAPA

Two libertarian scholars go toe-to-toe on Obama's immigration executive order

|

The Supreme Court heard oral arguments last week about the legality and constitutionality of DAPA (Deferred Action for Parents of American Children) — President Obama's controversial executive order that hands temporary legal status to some four million undocumented aliens. Not to be outdone, Reason Foundation arranged its own oral arguments between two pre-eminent libertarian legal scholars, both Russian emigres named Ilya.

Cato Institute's Ilya Shaprio opposed DAPA noting that the kind of en masse relief that the president was offering was unprecedented and tantamount to writing a new law by executive fiat, especially since his order didn't simply offer relief from deportation but also triggered benefits such as work authorization.

Volokh Conspiracy blogger Ilya Somin, a law professor at George Mason University, defended the president, making the case that he has both the constitutional and statutory authority to set enforcement priorities on immigration law just as he does on criminal law, especially since there are never enough resources to prosecute all the violations. This is not because there are more violators, but because the government has criminalized too many things.

The Federalist Society kindly taped the epic showdown between the two Ilyas that you can watch here:

Advertisement

NEXT: Finding the Middle Ground in Debate Over GMO Regulation

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “Two libertarian scholars go” in, one comes out…

    1. . . .with three opinions.

  2. Two libertarian scholars walk into a bar, because libertartians seem to drink alot.

    1. I think they only served cocktails at this event.

    2. We drink a lot, and we tend to be sarcastic as hell.

      I think it was Juvenal, the Roman satirist, who when asked why he wrote nothing but satire responded (something to the effect of), “Given the world I live in, what else could I write but satire?”

      We’re staring Hillary Clinton vs. Donald Trump in the face. What more appropriate thing is there for libertarians to do but get drunk and make fun of people?

      1. difficile est saturam non scribere. nam quis iniquae tam patiens urbis, tam ferreus, ut teneat se.

      2. Juvenal is awesome. If he’d be writing today, he’d be in prison. The snowflakes wouldn’t be able to handle him.

    3. Look, I can drink when I’m awake.

  3. OT: I’m really enjoying these chips and salsa at Fuzzy’s Tacos.

    I also decided to try the nachos today.

    I also got a taco, of course. Who knew that feta cheese could be so delicious on a taco, right?

    1. I’m down for a Fuzzy fish taco, but no crab.

    2. Fuzzy’s is great, especially for breakfast.

    3. I just looked that place up. I was almost certain that you were confusing cotija with feta, but no, it’s right there on the menu. Now I’m curious.

      1. It is where I go for semi-casual mex instead of Chipotle, now.

        1. If you get a drink, it is always in a commemorative cup. I have a dozen or so of them stacked in my office.

        2. They cover their chips in chili powder, and you can have the salsa warmed up.

          The beef nachos were okay. I usually like the taco and enchilada platter.

          1. We always get the queso, goes great with the chips. And I’m a big fan of the “big salad”. I get the chicken with avacado ranch. It’s just a big ass chickeny taco salad in a big metal bowl. Chickeny goodness.

  4. “The president has both the constitutional and statutory authority to set enforcement priorities on immigration law just as he does on criminal law.”

    Not that it matters what the Constitutions says anymore, but let’s go ahead and see what it says anyway.

    “The Congress shall have Power . . . To establish an uniform Rule of Naturalization.”

    —-Article 1, Section 8

    To establish a uniform rule of naturalization is an expressed/enumerated power of Congress specifically.

    If Congress chose not to make an exception for these people, then that is their right.

    Isn’t it funny how some parts of Article 1, Section 8 are so chiseled in stone that their importance seems to overwhelm the rest of the Constitution–e.g., the necessary and proper clause and the commerce clause? Meanwhile, other parts of Article 1, Section 8 are so unimportant, like Congress’ power to establish a uniform rule of naturalization or declare war, that they’re simply swept under the rug when inconvenient?

    The separation of powers is an important thing, and small state libertarians should support keeping them separated–even if ignoring the separation of powers would result in something we like happening in one particular instance. Whittling away at the separation of powers for some short sighted goal, certainly, is not defensible from a liberty maximizing perspective.

    Whether we think Congress should adopt DAPA in law and whether we should ignore the Constiution are two separate questions.

    1. I agree with you. What Obama is in effect doing, is abolishing immigration law while at the same time it remains in place. Which means, if I want to come to the USA, I have 2 ways of doing it. I do it the legal way through the immigration system, I wait, I spend money, I wait some more. Or I just walk right on in and stay right now, no waits, no expense, and on top of that I get granted privileges that are unavailable to legal immigrants. This should be infuriating to anyone who thinks about it in a non-biased way. Obama is basically destroying the rule of law only because he thinks he’s going to get more votes for Democrats.

    2. The separation of powers is an important thing, and small state libertarians should support keeping them separated

      Yep. And throw the separation of powers between the national and state governments in there, too.

      I’m continually frustrated by short-sighted libertarians lunging after the Shiny Toy of the Day (ooh, look, the feds are going to mandate gay marriage, federalism be damned! ooh, look, the President is going to amnesty millions of illegals, separation of powers be damned! Yay, the Total State will guarantee our liberties!) without regard to the long-term damage that they are supporting.

      1. I can’t see a libertarian argument for open borders. Sorry, cocktailitarians, I don’t buy it. Unless you are going to have a world system of government, you have sovereign nations. I don’t see how you have both.

        1. I can’t see a libertarian argument for open borders.

          Open borders only works if there is public land. Otherwise, it’s simply called trespassing.

          There is a contingent of libertarians who view liberty and equality as co-equals, not realizing that everything they do or believe in support of equality erodes liberty.

        2. I can’t see a libertarian argument for open borders.

          Freedom of movement?a freedom that’s unfortunately ignored by those who attempt the “self-ownership determines everything” school of libertarianism.

          Sorry, cocktailitarians, I don’t buy it. Unless you are going to have a world system of government, you have sovereign nations.

          Nothing wrong with that, as long as the single, or multiple, government(s) is/are libertarian.

          1. Freedom of movement?a freedom that’s unfortunately ignored by those who attempt the “self-ownership determines everything” school of libertarianism.

            How does this so-called “freedom of movement” square with the NAP? Unless you’re some georgist who believes that land ownership is aggression, it seems that this “freedom” requires a massive, aggressive state to implement a network of public land for you to be “free” to move on.

            1. The idea that the coercive power of government should be used against foreigners because of their mere presence within our borders doesn’t seem compatible with NAP to me.

              If you want to get rid of “free” social services like public schooling, Medicaid, etc. for everyone on the basis that the government forcing people to pay for each other is against NAP, then you’ll need to get in line behind me.

              If you want to use the government violating NAP as an excuse to violate NAP and arrest foreigners because of their mere presence within our borders, then where does that stop? Should the government violate NAP and criminalize sugary soft drinks on the basis that Medicaid beneficiaries shouldn’t be allowed to externalize the costs of their obesity? The solution to that violation of NAP is not to start violating NAP by throwing people in jail for drinking sugary sodas. The solution to that violation of NAP is to get rid of Medicaid.

            2. I’m not a big fan of using NAP as the standard for everything anyway, but throwing people in jail for their presence within our borders is not consistent with NAP. Suffice it to say, everything we do negatively impacts someone else in some way. As the Supreme Court correctly saw in Filburn, growing wheat on your own property for your own use negatively impacts the people who would have sold you wheat if you hadn’t grown it for your own use. Where they got it wrong was suggesting that negatively impacting other people justifies the use of government force.

              If everything I do negatively impacts someone else in some way and negatively impacting someone else means the government should use its coercive power to stop me, then then there isn’t anything I can do that doesn’t justify the use of government force. The proper standard isn’t that I shouldn’t be free to negatively impact other people; the proper standard is that I should be free to do anything that doesn’t violate someone’s rights. And the question you should be asking yourself is whether illegal aliens are violating someone’s rights by their mere presence here.

              Negatively impacting other people with their mere presence here is simply insufficient to justify using the coercive power of government.

        3. Then you’re not a libertarian. The argument is called ‘freedom of movement’. It’s almost as simple as you.

          1. Actually, you’re not in charge of who is and isn’t a libertarian.

      2. Libertarians are like everyone else: they like government when it pushes the stuff they want.

        1. Speak for yourself.

          I’ve even stood up for the Eighth Amendment rights of terrorists, and I’d have loved to see those bastards tortured to death.

          . . . just not by the government.

      3. The USG isn’t ‘mandating’ gay marriage. It’s allowing it. You lose; deal.

    3. Rules of Naturalization determine who can become a citizen and how, not who gets to enter/stay in the country. Granting temporary legal status through executive order may not be constitutional but I don’t see Naturalization playing a role.

      1. I seem to recall seeing that authority over immigration has been deemed a subsidiary “necessary and proper” derivation of the Naturalization Clause.

      2. “Rules of Naturalization determine who can become a citizen and how, not who gets to enter/stay in the country.”

        That’s a distinction without a difference.

        The President is changing the uniform rules of naturalization for certain people by way of executive orders without any input from Congress.

        As I wrote downthread, “If the President can make exceptions at will to Congress’ uniform rules of naturalization by way of executive orders, then Congress doesn’t have the power to establish uniform rules of naturalization.”

        According to the Constitution, the power to establish uniform rules of naturalization is an enumerated power of Congress–not the President.

        You can play funny with words or implications all you want, but it says what it says and it is what it is.

        1. That’s a distinction without a difference.

          So there is no difference between citizenship and being a resident alien?

          1. If Congress’ rules of naturalization have anything to say about residence–and we’re supposed to deport people for being here in violation of those rules–then, no, there’s no meaningful difference between the President granting residency in spite of Congress’ rules of naturalization and the President rewriting the rules of naturalization.

            1. Right, I’ll put you down in the “maybe” column.

        2. They really are different. You can be a citizen of a country w/o being a resident of it, and vice versa.

          1. Residency and naturalization are different concepts–but that isn’t what I said was the same.

            Here, read it again:

            “There’s no meaningful difference between the President granting residency in spite of Congress’ rules of naturalization and the President rewriting the rules of naturalization.”

            There’s no meaningful difference between the President doing A and the President doing B. It isn’t about the nature of the illegal aliens and whether they want to be residents or citizens. It’s about the President violating the separation of powers and infringing on the enumerated powers of Congress.

            No, there is no meaningful difference from the Constitution’s perspective between the President declaring war on Switzerland and the President declaring war on Uzbekistan. He’s infringing on the enumerated powers of Congress when he declares war without Congress’ input–because declaring war is an enumerated power of Congress.

            . . . and you pointing out that Switzerland and Uzbekistan are two different countries is completely irrelevant.

            1. Just like declaring war, establishing the uniform rules of naturalization is also an enumerated power of Congress. If the uniform rules of naturalization established by Congress say that illegal aliens cannot achieve residency while breaking the law and being here illegally, then those are the uniform rules of naturalization.

              The President does not have the power to arbitrarily change the uniform rules of naturalization and decide that illegal aliens can now be legal residents–while their citizenship applications are pending–using whatever criteria the President pleases through executive orders. We know that because the power to establish the uniform rules of naturalization is expressed/enumerated power of Congress.

  5. Constriction radiates pseudo paradises and peace devoid of prisons endangers the livelihood of the autocratic practitioner.

    1. There you are!

      We’ve been worried about you.

    2. Hey, AC! Glad you’re back, man.

    3. you’re usually more coherent than this

        1. he at least would, you know, tell a story or something.

          1. Needs more intergalactic space penis.

    4. Schizophrenics write word salad. Agile Cyborg writes word banquets.

      1. True. Some of the dishes he serves are a little exotic for my tastes, but hey, he’s an artiste. That’s gonna happen.

  6. Want to meet a girl? Welcome to http://goo.gl/mxiosK
    the Best adult Dating site!

    1. Johnny Longtorso has a sock?

      1. A full one, by the looks of it.

        1. *applause*

      2. More of a homemade Realdoll.

        1. A couple of pillows with a photocopy of someone’s face taped to one of them?

  7. Perhaps it needs to be added, if the President can make exceptions at will to Congress’ uniform rules of naturalization by way of executive orders, then Congress doesn’t have the power to establish uniform rules of naturalization.

  8. OT, but relevant, re: “Presidential Enforcement Priorities”, and Obama suddenly noting ‘obvious problems’ (with limited political reward) at the end of his administration rather than the beginning…

    Longer prison sentences for non-violent criminals and crowded prisons are hurting the American economy more than they are helping it, economists in U.S. President Barack Obama’s administration said in a report released on Saturday.

    The prison population in the United States is 4.5 times larger than it was in 1980, primarily driven by longer sentences and higher conviction rates for nearly all offenses, according to the Council’s report.

    Economists are “of one mind” that packed prisons, excessively long sentences, and insufficient reentry programs “are counter-productive to our economy as a whole in addition to hurting the people involved,” Jason Furman, chairman of the White House Council of Economic Advisers, told reporters in a call on Friday.

    Is this just legacy-burnishing..? spit-shining his credibility on ‘justice issues’ at the end of his presidency, after a decade of aggressive whistleblower prosecutions, zero-effort at drug-war reform, escalation of military-style policing, and allowing Federal agencies to run-amok with their own excessive enforcement efforts?

    1. “Is this just legacy-burnishing..?”

      Pick the most crass motivation you can think of and presume it’s worse than that.

      1. Actually, by that measure, i was wondering if this were actually some unbelievably petty attempt to capitalize on the criticism the public is making over Clinton’s legacy with ‘excessive enforcement’ …

        (eg. growing public awareness of the costs of the 1994 Crime Bill, ‘superpredators’ and the like)

        …and try to create some appearance that “Obama started to change all that!!” (which is obviously horseshit, as already noted)

        I guess maybe its possible he is, and that he thinks the shade it throws on her doesn’t matter, given she’s a shoo-in for the nomination… and since Rand left the GOP race, i havent seen anyone else on that side pick it up as an issue…

        but still, it seems less plausible, despite the fact that it is indeed extremely ‘coincidental’ that his admin should jump on this subject the moment it happens to be gaining some traction in the public mind.

    2. We’re going to see a lot of really interesting things happen by way of executive order the closer we get to the end of Obama’s term.

      It’s going to be like when Bill Clinton started pardoning his campaign donors only it’ll be Obama favoring his personal causes rather than favoring his favorite people.

      1. Oh, I’m sure he can manage both.

    3. longer sentences and higher conviction rates for nearly all offenses

      I suppose it’s too much to ask for a breakdown by things-that-should-be-crimes versus things-that-should-not-be-crimes.

  9. Another question, if the President can ease Congress’ uniform rules of naturalization by way of an executive order, then a future President can make them harder than Congress’ uniform rules, too, right?

    No more Nigerians, Syrians, Pakistanis, Swedes, or Estonians? And we’re just gonna take the number of visas we grant each year and cut those number in half–and here’s my executive order?

    1. People in pursuit of the Shiny Toy of the Day never remember the Iron Law:

      Me today, you tomorrow.

    2. actually, I wouldn’t think this to be the case.

      it seems to me that this is akin to prosecutorial discretion. prosecutorial discretion lets you prioritize which crimes you will prosecute, but it does not let you rewrite criminal law.

      1. (a) This goes beyond declining to prosecute. He’s actually changing their legal status.

        (b) At some point, declining to prosecute becomes a de facto nullification/repeal of the law.

        Imagine, if you will, a State AG saying that they are going to leave the 21 drinking age on the books, to get that sweet federal moolah, but he is issuing a “prosecutorial discretion” directive that no one is to be prosecuted for providing booze to people over the age of 18.

        Do you think for an instant that the sweet federal moolah would keep flowing?

      2. “It does not let you rewrite criminal law”

        I agree that it shouldn’t let you do that, but isn’t that what the President is doing?

        To be eligible for DAPA, a person must:[20]

        Have lived in the United States without interruption since January 1, 2010

        Have been physically present in the United States on November 20, 2014 (the date the program was announced)

        Be physically present in the United States when applying to the program

        Have lacked lawful immigration status on November 20, 2014

        Have had, as of November 20, 2014, a child who is a U.S. citizen or lawful permanent resident

        Not have been convicted of a felony, significant misdemeanor or three or more other misdemeanors, and not “otherwise pose a threat to national security or be an enforcement priority for removal.”

        https://en.wikipedia.org/wiki /Deferred_Action_for_Parents_of_Americans #Eligibility

        That’s isn’t just deferring prosecution. That’s a new law with its own new criteria and everything.

  10. OT: An Indian spiritual guru tried to start peace talks with ISIS. This is how it responded.

    Sri Sri Ravi Shankar, an Indian guru known best for his Art of Living foundation, which has a vast global community of followers, claims to have attempted to start peace talks with the militants of the Islamic State. But his efforts proved futile.

    “I tried to initiate peace talks with the ISIS recently but they sent me a photograph of a beheaded body of a man,” he told Indian media, using another name for the extremist organization. “Thus, my effort for a peace dialogue with the ISIS ended.”

    1. No shit.

      It’s one thing to be naive, quite another to be a useful idiot. Useful idiots drag people into their stupidity.

      1. Sri Sri’s servant: Guru master a reply from ISIS!
        Sri Sri (opens envelope eagerly): Oh dear.
        Servant: What is it master?

        Servant looks at photo in horror as Sri Sri looks off into the distant.

        Servant: This is not good, right?
        Sri Sri: No. No it is not.
        Servant: What shall we do? Yoga harder?
        Sri Sri: To the mustard seed fields! I must think.

    2. better still was his quick pivot to “the alternative”

      The advocate for meditation and harmony offered this frank conclusion: “I think the ISIS does not want any peace talks. Hence, they should be dealt with militarily.”

      I think the more-accurate headline isn’t about “what he tried (and failed) to do”, but rather what this ‘peace & love-nik’ concluded = “BOMB THE FUCKERS”

    3. Duh! I mean, these people are retarded. Submit or off with your heads, brainless vessels that they be.

  11. My mothers neighbour is working part time and averaging $9000 a month. I’m a single mum and just got my first paycheck for $6546! I still can’t believe it. I tried it out cause I got really desperate and now I couldn’t be happier. Heres what I do,

    ============= http://www.richi8.com

  12. Spot the Not: Maine gov Paul Lepage

    1. What I think we ought to do is bring the guillotine back. We could have public executions.

    2. The traffickers … these are guys by the name D-Money, Smoothie, Shifty. These type of guys that come from Connecticut, New York. They come up here, they sell their heroin, then they go back home.

    3. They never admit it, but most women like it when a strong man takes control and slaps them when they get out of line.

    4. Sen. Jackson claims to be for the people, but he’s the first one to give it to the people without providing Vaseline.

    5. If you take a plastic bottle and put it in the microwave and you heat it up, it gives off a chemical similar to estrogen. And so the worst case is some women might have little beards.

    6. Everybody looks at the negative effects of global warming, but with the ice melting, the Northern Passage has opened up.

    1. 3. They never admit it, but most women like it when a strong man takes control and slaps them when they get out of line.

      I’m pretty sure that’s either James Brown or Bill Clinton

    2. 3. If not that, then 4.

    3. 3 is the Not. Reals are from: http://www.cnn.com/2016/01/26/…..tes-maine/

    4. 5. If you take a plastic bottle and put it in the microwave and you heat it up, it gives off a chemical similar to estrogen. And so the worst case is some women might have little beards.

      Oh my God, BPA. Transgendered frogs!

  13. 1, 3, 4, 5, and 6?
    Please??
    5, if I have to pick.

  14. If I were the gop nominee, this would be my campaign commercial.

    http://hotair.com/archives/201…..n-control/

    1. Stupid Party. Nuff said.

      1. What? I thought this was more of an “Evil Party” kind of thing. They haven’t fully switched labels yet, that will come with the election.

        1. He’s saying the GOP is too stupid to capitalize on this opportunity.

    2. . . . my mom . . .

      OMG she so needs to stop doing this.

      Look Chelsea – you’re not a girl anymore, you’re a grown woman now with your own children. You need to stop this because it diminishes *you* when you keep getting up in front of people and talking about your ‘mom’ instead of HiIlary Clinton. Stop calling her mom, you’re not 13 anymore and you don’t even call her that in private.

      1. Actually, what is sounds like is childish – and who the hell cares what a child thinks about Clinton’s policies?

        Yeah, I think that nails what I’m trying to say.

      2. Is that odd? I still call my mother ‘my mother’ or ‘my mom.’ I think it’d be weirder? and she’d get heavier criticism? if she called her “Hillary.”

        1. Cosigned.

  15. Also interesting on the Obama front (from yesterday)

    Obama tells British youth: “Ignore Everything You See re: Migrant Violence, Fiscal Implosions, and Rampant Corruption – the EU is Awesome-Sauce, Because Sovereignty is Bullshit”

    U.S. President Barack Obama implored young British people on Saturday not to pull back from the world, a day after sparking a row by bluntly telling Britain it should remain in the European Union to preserve its remaining global clout.

    Obama angered critics of the EU on Friday by warning that Britain would be at “the back of the cue” for a trade deal if it left the club – one of the strongest U.S. interventions in the affairs of a western European democracy since the Cold War.

    A YouGov poll showed that while British voters think Obama has done a good job as U.S. president, 53 percent felt it was inappropriate for Obama to express a preference on how Britain should vote, while 35 percent said it was appropriate.

    “His meddling stems not from his concerns for Britain or, indeed Europe, but from his own ? America’s ? interests,” former British finance minister Norman Lamont, a supporter of a British exit, wrote in the eurosceptic Daily Mail newspaper.

    1. i also think its funny that Reuters, an ostensibly brit news org, would misspell “queue”

      1. Brits can’t even speak English, let alone spell stuff right.

    2. Let me sum it all up for the bullshitter, he’s wasting his time:

      “Submit to unelected bureaucrats in Brussels so that they can control every minute aspect of your existence, stupid peasants!”

      I’ve oft said that I think Obama will try to get a top spot at the UN after his gig is up, but now I’m starting to think he winds up in Brussels.

      1. I’ve oft said that I think Obama will try to get a top spot at the UN after his gig is up

        Hm. It seems like something you’d think would fit him, but the thing is the international diplomatic bureaucracy doesn’t like ‘strong leaders’; they pick team-players from aspirant regions, not prima-donnas from the Big 5 sec-council members. Definitely not anyone that would be perceived to maintain particular permanent bias towards/against other superpower-nations. Latam, Africa, SE Asia, maybe Scandinavia would seem to me the only places they’d look.

        Also – I think people fail to appreciate how Obama’s admin is so widely disliked in the Foreign Relations world. They expected him to be ‘clintonian’ (return to multilateralism) in the wake of Bush, and instead he was something *worse* – someone who wanted to unilaterally dabble in foreign policy issues purely for his own domestic-politcal gain, but without any consistency or consistent POV. All talk and no trousers.

        Where the world expected “American Diplomatic Power” to be a constant steadying force, Obama diluted it to almost nothing. We’ve estranged and distanced the Israelis, the Saudis, the Chinese, and have let key flashpoint regions (like the ME or south China sea) descend into a mess that is worse than anything that could have been imagined under Bush.

        in short, i don’t see a future career for him in “international relations” at all.

        1. He apparently bought Magnum PI’s house, so I assume he is going to hang out there a lot, torment a chubby British dude, and maybe solve a few mysteries with his old pals in his spare time.

          1. Really? I’d read he’d bought property outside palm springs in Rancho Mirage, the elephant graveyard of Golfing-prone ex-presidents.

            Or perhaps he’ll have both, and live a life of endless-summer

            1. I did some googling and maybe that is not true, because the White House denied it. And he does like golf, so you are probably on to something.

          2. With the occasional gassy, six-figure speech to help with the renovations.

            God we can only hope he’ll retire into the sunset without doing any more damage.

        2. Supreme court nominee?

  16. 2?once I saw the draft of 4200 bucks,,,I admit that my sister was like really generating cash in his free time with his COM. My aunt has done this for only 6 months and by now repaid the loan on their home and bought a new BMW..N7

    ———— http://www.Buzzmax7.com

Please to post comments

Comments are closed.