Fox News host Heather Nauert is calling a bizarre federal court opinion that found President Obama's executive action on immigration unconstitutional a "pretty simple" decision, despite the fact that even conservative legal experts have called it a stretch.
On the December 17 edition of Happening Now, Nauert turned to legal experts Robert Bianchi and Brian Claypool to discuss Judge Arthur Schwab's lower court ruling that, surprisingly, evaluated the constitutionality of the president's recent decision to exercise prosecutorial discretion and defer deportation for certain undocumented immigrants. Both Bianchi and Claypool explained that the judge's ruling had "no legal significance" and "doesn't make sense," but Nauert disagreed. Other conservative legal experts are also questioning how the judge came to this conclusion on an unrelated matter of civil immigration law, given the fact that neither party in this criminal case contested the constitutionality of Obama's executive order.
Although Nauert admitted that she is "not a lawyer," she nevertheless argued that the judge's decision "seems pretty simple":
But the ruling from Judge Schwab, who has seen his fair share of controversy with respect to his legal judgment since being appointed to the bench, wasn't quite as "simple" as Nauert insisted.
Legal experts across the political spectrum agree that the president has broad authority to exercise prosecutorial discretion when it comes to deportation proceedings, which the Supreme Court affirmed as recently as 2012. Despite right-wing media's unwillingness to accept the idea that Obama's order is lawful, immigration experts have noted that the president is not only acting "within the legal authority of the executive branch of the government of the United States" but is also authorized by federal statute to provide temporary administrative relief of this type, as presidents of both parties have done for decades.
Moreover, according to Jonathan Adler, a law professor and contributor for The Washington Post's libertarian Volokh Conspiracy blog, Judge Schwab overstepped his own authority in ruling on the constitutionality of Obama's executive order. As Adler explained, "it is quite unusual for a district court to reach this sort of constitutional issue in this sort of case":
Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President's actions. Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order. That is, the issue was not initially raised by the defendant in his own defense. As a result of the court's decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy.
On the merits, I understand the concerns that motivate Judge Schwab's reasoning, but I am not persuaded. First, it is important to note that the executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades. Work permits have been issued in conjunction with deferred action for at least forty years. President Obama's actions are broader in scope, but not clearly different in kind from what his predecessors have done and to which Congress has acquiesced.
Adler's conservative colleagues at the Volokh Conspiracy agreed with this assessment, with law professors Ilya Somin and Orin Kerr calling it "poorly reasoned" with "serious flaws," and "exceedingly strange," respectively. Somin elaborated on how radical the opinion is, noting that "[i]f the Supreme Court were to adopt Judge Schwab's reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president's order was. Neither possibility is particularly attractive, and neither is required by the Constitution."
On the other hand, Judge Schwab does have the support of Fox News host Sean Hannity, who crowed that the opinion "could've been written by me."
Radio host and Fox News personality Sean Hannity applauded and seemingly claimed credit for a federal judge's district court ruling in Pennsylvania that found President Obama's executive action deferring deportation for millions of undocumented family members of U.S. citizens or lawfully permanent residents to be unconstitutional.
The Washington Post's Volokh Conspiracy blog reported that Judge Arthur Schwab, appointed to the federal bench by President George W. Bush, "declared aspects of President Obama's executive actions on immigration policy unconstitutional," in a first of its kind opinion that is already being criticized for reaching beyond its scope to decide a constitutional question not before it.
Upon hearing Schwab's opinion, Sean Hannity wasted no time claiming partial credit for the decision. On the December 16 edition of The Sean Hannity Show, he said of the ruling, "I gotta tell you something, it almost could've been written by me, because he makes the very arguments that I had been making the entire time."
Hannity's guest, Jamie Dupree, agreed that the ruling "echoes a lot of the arguments that Republicans have been making about these actions over the last few weeks."
In fact, the Republican arguments, promoted incessantly by figures like Rush Limbaugh and Hannity, have been rejected as baseless by most legal experts across the political spectrum and President Obama's recent actions have ample precedent in the past executive actions of former presidents like Ronald Reagan and George H.W. Bush.
Right-wing media lobbed harsh criticism and conspiracy theories at Jeb Bush in response to his decision to "actively explore" a 2016 presidential bid, even urging more conservative Republicans to run against him.
The Washington Post is helping a former official from President George H.W. Bush's administration walk back his 1990 congressional testimony that Bush's executive action on immigration could have helped up to 1.5 million people and using that to decry the Obama administration's use of the figure to justify its upcoming immigration action. But the official, then-Federal Immigration Commissioner Gene McNary, was the person who introduced the 1.5 million figure, and an immigration expert's analysis of immigration numbers at the time shows that the figure is plausible.
The Washington Post editorial board is contesting the Obama administration's claim that his recent executive action on immigration is similar in scope to former President George H.W. Bush's temporary administrative relief for undocumented immigrants in 1990, which reportedly affected 1.5 million family members of legalization applicants. Calling the White House's 1.5 million figure "indefensible," the editorial also repeated the accusations of its fact checker, Glenn Kessler, who previously insisted that the figure is inflated despite contemporaneous congressional testimony to the contrary.
But now a leading immigration expert says the Post is "doubling down on a grievous error."
According to Charles Kamasaki, Executive Vice President of the National Council of La Raza (NCLR), author of a forthcoming book on the Immigration Reform and Control Act (IRCA) of 1986 and its subsequent effects, and one of the leading experts on immigration law and policy in the country, the White House's citation of the 1.5 million estimate of those who stood to benefit from Bush's 1990 action is "completely defensible."
In a December 4 letter published on the NCLR website, Kamasaki pointed out numerous mistakes in both the substance and reasoning in both the Post's editorial and fact check, and pointed out that a "'quick and dirty' analysis" that encompasses "Kessler's own reporting" demonstrates that the White House's "1.5 million estimate of ineligible family members of IRCA's legalization applicants is valid on its face":
There's a second way of looking at this issue, which is to take the available data and see whether, independent of take-up rates, the 1.5 million estimate of ineligible family members of IRCA's legalization applicants is valid on its face. A quick analysis suggests it is eminently plausible. First, consider the number of applicants: 3.3 million people applied for IRCA's two main legalization programs, another 40,000 or so for a special Cuban-Haitian program, and perhaps 75,000 for a registry program for those who had entered prior to 1972. So we start with a base of more than 3.4 million applicants.
But these were not the only applicants potentially covered by "family fairness" in 1990. Under two major national class action lawsuits, hundreds of thousands of people claimed they had been unfairly denied the opportunity to apply for legalization because of improper eligibility rules, inaccurate information, or other reasons. The plaintiffs largely won on the merits in the lower courts, although appeals courts later denied all but a few thousand the opportunity to apply. The key point, however, is that as of 1990, when the Bush policy was announced, this litigation was still pending, and thus several hundred thousand of these class members technically were still potential applicants. Adding these potential applicants to those who had applied brings the universe of total actual and potential IRCA applicants whose ineligible family members might've been covered by family fairness into the four million range.
- Kessler's own reporting shows that 42% of IRCA applicants were married. Multiplying four million by 42% produces a total of 1.7 million spouses. But many, arguably half, likely qualified for legalization themselves, bringing the number of spouses ineligible for legalization to perhaps 840,000.
- How many kids might've been covered? Here we have very good data on the contemporary undocumented population, which we might apply to 1986-1990 in a backward fashion. The Migration Policy Institute estimated last year that of the 11 million unauthorized immigrants in the country, there were more than 1.9 million unauthorized youth who were brought to the country by their parents. In other words, about 17% of the current undocumented population is made up of children analogous to those who would have been covered by the Bush policy. Applying this 17% figure to the estimated 5 million undocumented population as of 1986 produces a total of about 850,000 unauthorized children.
- Some number of those were likely older than 21 as of 1990; adjusting for this produces an estimated population of ineligible children of legalization applicants as of 1990 to perhaps 640,000. Still, 840,000 spouses added to 640,000 children equals 1.48 million, very close to the cited 1.5 million estimate.
Based on this "quick and dirty" analysis, there really were close to 1.5 million people eligible for relief in 1990, and it is a completely defensible number.
The Wall Street Journal is misrepresenting the legal justification for President Obama's executive actions on immigration from the Justice Department's Office of Legal Counsel (OLC) -- even falsely claiming that the OLC's opinion does not quote "specific statutory language."
On November 20, Obama announced that he would take executive action on immigration by prioritizing deportations of dangerous undocumented immigrants over the undocumented parents of U.S. citizens or lawful permanent residents who pass a criminal background check and register for temporary administrative relief. Right-wing media were quick to accuse Obama of lawlessness for this deferred action on deportations and to declare his order "unconstitutional," despite the fact that the overwhelming majority of legal experts agree that the president has the authority to exercise this sort of prosecutorial discretion in service of family unification.
The Wall Street Journal was no exception. Before the president issued his executive order, the Journal claimed in a November 16 editorial that the president didn't have the authority to act on immigration because his administration had not yet received a "written legal justification" from the OLC. According to the editorial, the "President should always seek legal justification for controversial actions to ensure that he is on solid constitutional ground" by asking for the OLC's guidance. The Journal ultimately concluded that "[i]t's possible" the Obama administration hadn't "sought an immigration opinion because they suspect there's little chance that even a pliant Office of Legal Counsel could find a legal justification" -- apparently unaware that Obama had already received legal advice from the OLC, Attorney General Eric Holder, and immigration experts before the Journal published its editorial.
As requested, the OLC published its official opinion on Obama's immigration proposal prior to his announcement on November 20. The opinion determined that the president had the authority to prioritize and defer some deportations over others -- but that apparently wasn't enough to appease the Journal. In a November 24 editorial, the Journal criticized the OLC's opinion: "Now that we've studied the legal memo his government used to support his order, his abuse of power looks even worse." But the editorial incorrectly claimed the opinion allowed the president to "rewrite" the law by "exempting whole categories of people and extending federal benefits that they aren't entitled to by statute." Worse, the Journal falsely claimed the memo omitted information that it actually included. From the November 24 editorial:
The problem, as the Justice Department's Office of Legal Counsel (OLC) concedes in the 33-page document, is that "the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite laws to match its policy preferences" or apply "set formulas or bright-line rules." Yet Mr. Obama is making precisely such a rewrite, by exempting whole categories of people and extending federal benefits that they aren't entitled to by statute.
By recognizing that there is no categorical exemption, the OLC is implicitly admitting that Mr. Obama is stretching prosecutorial discretion beyond legal norms.
These are the kind of errors that normally scrupulous lawyers make under deadlines or political pressure. The OLC memo reveals that the White House did not submit formal legal questions until Wednesday, Nov. 19, and the OLC drafted the opinion the same day. The details of the new program weren't complete and submitted to the Justice Department until Monday. The OLC published the memo on Thursday, Nov. 20.
We wouldn't be surprised if some West Wing minion read our editorial [from November 16] "The Missing Immigration Memo," panicked, and rushed one out. Mr. Obama's political calculation --in keeping with his lawlessness on health care, drug policy and the rest -- seems to be that he'll dispense with laws or parts of laws that displease him and dare Congress to challenge him. Republicans can and should take the dare.
Right-wing media outlets hyped widely discredited research from the Heritage Foundation to push the myth that President Obama's executive actions on immigration will cost the U.S. economy more than $2 trillion in federal benefits paid to those undocumented immigrants whose deportations are deferred. But Obama's exercise of prosecutorial discretion on behalf of certain undocumented parents of U.S. Citizens and lawful permanent residents does not confer federal means-tested benefits and economists report that allowing more immigrants to legally work will raise revenues and boost the economy.
Washington Post fact-checker Glenn Kessler is standing by his blog claiming that the White House had erred in citing President George H.W. Bush's immigration data -- despite evidence discrediting his conclusions.
In his November 24 piece for The Washington Post's Fact Checker blog, Glenn Kessler examined claims that President George H.W. Bush used an executive action to protect 1.5 million undocumented immigrants. Kessler described the figure as a "round-ed up estimate" that the media adopted because many of the applicants included people who were not eligible to be legalized at the time due to pending applications or appeals. Kessler concluded that the White House had "seized on a single news report" to take the opportunity to highlight higher numbers and that even the Federal Immigration Commissioner, Gene McNary, claimed not to be factual.
Huffington Post politics and immigration reporter Elise Foley responded to Kessler's blog by pointing to congressional testimony from McNary from 1989 in which McNary affirmed that 1.5 million undocumented immigrants were covered by the policy.
Kessler updated his blog to note the discovery of McNary's testimony but failed to offer an apology or retraction for his oversights, instead doubling-down on his conclusions:
Update: in light of the discovery of McNary's testimony, we will assess whether this should be reduced to Three Pinocchios. In any case, the actual impact was far less than suggested in administration statements
Media outlets have since latched onto Kessler's piece as evidence that the Obama administration's citation of the number was inaccurate. The Washington Post's Charles Lane described the post's conclusions as "devastating," and Fox News' Chris Stirewalt used it to claim that President Obama was wrong in using the numbers as "a centerpiece" of his argument for an executive action on immigration.
From the November 21 edition of Premiere Radio Networks' The Mark Levin Show:
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Conservative media outlets are attacking President Obama's immigration action with myths that the newly protected workers will hurt the economy and the tax system. In reality, immigration increases wages and doesn't hurt employment, and the executive action is likely to boost tax revenue.
From the November 21 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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From the November 21 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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From the November 20 edition of Fox News' The Five:
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Rush Limbaugh is continuing his tirade against President Obama's executive order on immigration, which will reportedly defer deportation for the undocumented parents of U.S. citizens and permanent residents. In addition to ignoring legal experts and the historical precedent for this action, Limbaugh also incorrectly described the legal basis for these immigrants' future work permits.
On November 20, the president will announce plans to exercise prosecutorial discretion and take executive action on immigration, a move that could expand the Deferred Action for Childhood Arrivals (DACA) program in addition to preserving families by halting deportations for certain groups of undocumented immigrants. The order is also expected to make clear that those affected will be eligible for work authorization permits. Even though every president since Dwight Eisenhower has taken some kind of executive action on immigration, right-wing media have nonetheless attacked Obama's action as illegal.
Limbaugh has been a vocal opponent of the president's executive order, joining the right-wing media's failed attempt to distinguish Obama's order from similar executive actions taken by Republican presidents like Ronald Reagan and George H.W. Bush. Limbaugh continued to mislead about the order on his November 20 radio show, saying that "there is no way in hell that giving people who are here illegally work permits fits under the rubric of prosecutorial discretion." Even though Limbaugh conceded that "prosecutorial discretion is standard operating procedure, it's been used for centuries," he still concluded that Obama "doesn't have that power" to exercise discretion over deportations because it would "turn [undocumented immigrants] legal":
Right-wing media's outrage over President Obama's upcoming speech outlining plans to improve enforcement of the immigration system included accusations that Obama is engaging in "home-grown tyranny," calls for his impeachment, and even a Hitler comparison.