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Posted by on Nov 21, 2014 in Immigration, Law, Politics | 23 comments

Conservative Legal Scholars: Obama’s Immigration Move Legal

Kevin Drum reports on conservative legal opinion on the President’s immigration move on Mother Jones. [icopyright one button toolbar]

I’ve been paying only moderate attention to the whole issue of President Obama’s executive order on immigration, and it’s only over the past few days that I’ve started trying to learn more about the legal issues involved. And I confess that I’ve been a little surprised by what I’ve discovered. As near as I can tell, both liberal and conservative legal scholars—as opposed to TV talking heads and other professional rabble-rousers—agree that Obama has the authority to reshape immigration enforcement in nearly any way he wants to.

 

It’s an open question whether Obama’s actions are politically wise. It might force Republicans into an uncomfortable corner as they compete loudly to denounce Obama’s actions, further damaging their chances of appealing to Hispanics in future elections. Alternatively, it might poison any possibility of working constructively with congressional Republicans over the next couple of years, which might further degrade Democratic approval ratings. There’s also, I think, a legitimate question about whether liberals should be cheering an expansion of presidential power, whether it’s legal or not.

 

That said, Obama’s actions really do appear to be not just legal, but fairly uncontroversially so among people who know both the law and past precedent. Republicans may not like what Obama is doing, and they certainly have every right to fight it. But they should stop spouting nonsense about lawlessness and tyranny. That’s just playground silliness.

Cross-posted from The Sensible Center

http://thesensiblecentercom.blogspot.com/2014/11/conservative-legal-scholars-obamas.html

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  • sheknows

    ” Alternatively, it might poison any possibility of working constructively with congressional Republicans over the next couple of years, which might further degrade Democratic approval ratings. There’s also, I think, a legitimate question about whether liberals should be cheering an expansion of presidential power, whether it’s legal or not.”
    ???
    Even when president Obama has all the legal support he requires and has been forced to take this action because of continual Republican opposition, and what he proposes is the best thing for these immigrants who are threatened with deportation…he still gets criticized.
    The right has never had a plan nor do they to work across the aisle and if our president can expand his power in this Chinese finger puzzle of congress, I say go for it!! He has found a way around them…..and that’s what makes them really mad!

    • Rambie

      I applaud this particular move by President Obama, he promised to do this, let Congress have over a year to pass a bill. He even hurt his own by delaying this EO until after the election.

      I’m less than happy about expanding executive powers. However, I’m even less happy about how the GOP has been running the House and how they’ll likely run congress for the next two years.

      • sheknows

        I fear they are likely to run congress the way have been running things ever since their restaurant meeting. Obstruct. it is a proven plan for success that not only pleases 66% of their base, it castrates the president’s ability to make progress and it gets them a majority election. This is all they have to do for the next two years and as it has also successfully done… it only reflects badly on Obama, hacking him off at the knees.

        • Rambie

          I have no doubt, even prior to the latest EO, that they had no interest in working in a bipartisan way. That however doesn’t mean I agree on expanding presidential powers.

          I still applaud this move by President Obama but still warry what crazy stuff the next GOoPer president will do with EO’s.

          • SteveK

            Rambie – You’ve twice mentioned ‘expanding presidential powers’ but, from everything I’ve read from non-partisan sources this is not the case. Would you mind expanding on how you think this has happened?

          • Rambie

            Steve, this particular EO, or any from President Obama, have not expanded presidential powers. It’d be completely out of character for this president to even try such a tactic.

            I worry that the next GOP President, could happen as soon as 2017 *shivers*, will use the excuse to do just that AND that the Democrats won’t stand up to it and fight to stop him/her.

          • SteveK

            I wouldn’t worry about the next GOP President because there will not be another GOP President until both the leadership and the members of the Republican rejoin reality.

            When this happens over-stepping authority (both presidential and legislative) will not be cause for too much concern. I believe this will happen and that we all will be better for it.

          • Rambie

            I applaud your optimistic view Steve

          • In a two party system you can never be certain that the Republicans won’t win the presidency. The Democrats certainly have the edge in the electoral college and demographics help, but this isn’t a total lock. I fear Hillary Clinton could make a terrible candidate, and wouldn’t totally put it past her to lose. After all, if she could lose to Obama in the primaries in 2008 despite going in with a huge advantage, she is capable of blowing it in a general election in 2016.

          • sheknows

            “guess if the Republicans can’t win the presidency with unlimited campaign donations from the super rich, they’ll have to resort to rigging the electoral votes. Lund’s bill to divide the electoral votes from Michigan is reminiscent of a 5-year-old changing the rules of hopscotch after losing. Why don’t they just go ahead and introduce legislation that no one else can play? Meaning, no Democratic candidates will be allowed on the ballot?

            Dividing the electoral votes is only viable if all states, including Republican-dominated ones do so. If this bill passes, it will show even more that Republicans aren’t interested in the democratic process. Their extremist gerrymandering and support from corporate oligarchs has shown enough already. If Gov. Rick Snyder signs it, the democratic process will disappear in Michigan.” Detroit Free Press Nov 19.
            Things are about to change in this country Ron. They already have ,and we just keep discounting their importance.

          • Plus historically political parties have had difficulty winning after holding the White House for 8 years and even more difficulty after 12. Of course it took Florida and the Supreme Court to keep the Democrats from holding onto the White House after Bill Clinton.

        • SteveK

          This is all they have to do for the next two years and as it has also successfully done… it only reflects badly on Obama, hacking him off at the knees.

          I’m seeing (and participating in) a lot more calling out of the 24/7 spins / erroneous talking points and lies that the right has gotten away with the last several years.

          You can call out BS talking points and the people who seem to think that if they just continue posting them without being called out… And you can do this without overstepping commenting policy.

          It gets a little tense at times but all I can say is, “It’s about time.”… And it’s nice seeing that others are seeing it this way and finally calling out the lies.

          • sheknows

            Thanks Steve. I know you have been very restrained and considered in your postings regarding the right lately and I really admire that. Others ( myself) are probably just too emotional to keep my mouth shut and It probably does create discomfort if not tension. Need to be more reserved perhaps. And to think….I have to revise and moderate my comments as it is. 🙂

          • Brownies girl

            SK writes: “Others ( myself) are probably just too emotional to keep my mouth shut and It probably does create discomfort if not tension.”

            IMO only – no you’re not and no it doesn’t. You’ve more than earned your stripes here, m’dear. I’m with you all the way on this topic! 😉

          • SteveK

            sheknows – I hope you didn’t think that my, “And you can do this without overstepping commenting policy” was aimed at you because it wasn’t.

            More to the point – It wasn’t meant as a warning at all… It was meant as a battle cry!

    • I don’t think Drum actually believes that paragraph’s arguments himself nor did he intend them as criticisms of the President. He included that paragraph to say those points are at least arguable. He made that statement in the context of saying legal scholars on both sides pretty much agree that Obama’s legal right to this Executive Order and precedent for it are NOT arguable.

      • sheknows

        Thanks Ballard. But I also get that he states them as two very common talking point objections, the first being Boehner’s ridiculous cry of “ruining the chances for a bipartisan relationship” and the second being the entire right’s constant accusation of “executive overreach”. Anyway, that’s how I interpreted it.

  • dduck12

    I agree with the article, not the SK comment.

  • The most annoying thing about the Republican argument is that they were the ones who went so far in pushing presidential authority when in office, with their theories such as the Unitary Executive. Then Obama does a fraction of what they did and they cry about him acting like a monarch.

  • Rambie

    “…It might force Republicans into … further damaging their chances of appealing to Hispanics in future elections…”

    That’s up to the GOP, but they’ve spent decades encouraging a “us vs them” political mentality. It’s about time it turns and bites them on their a**

    ” …Alternatively, it might poison any possibility of working constructively with congressional Republicans over the next couple of years…”

    Please. If you thought there was EVER a chance of that occurring, I have a bridge to sell you. The GOP’s plan was, “My way or the highway” as it’s been in the past.

    “…But they should stop spouting nonsense about lawlessness and tyranny. That’s just playground silliness…”

    They’ve been doing it for years and turned the knob up even higher after the 2008 election. At this point, I don’t think they know how to stop “spouting nonsense” about any subject.

  • JSpencer

    “it might poison any possibility of working constructively with congressional Republicans over the next couple of years”

    Right. Because reps in congress have been so diligent to this point.

  • Slamfu

    “Alternatively, it might poison any possibility of working constructively
    with congressional Republicans over the next couple of years, which
    might further degrade Democratic approval ratings.”

    There is a reason most of the responses here have led with that quote. It’s premise is completely absurd. It should read as follows:

    “Alternatively, it might poison any possibility of working constructively
    with congressional Republicans, who are in the middle of suing him. For doing something they asked him to do, while at the same time they are admonishing him for not co-operating, because he co-operated with them.” That is what is actually going on. Say it out loud so you can truly hear how nuts the GOP is right now.

  • The_Ohioan

    People keep talking about an executive order. That’s not what this is based on; executive actions are what are planned. Executive orders take on the authority of law. Executive actions do not; which is probably why the experts think these actions are legal.

    http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal.pdf

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