Friday, November 21, 2014

FACTS: President Obama's Immigration Policies Are Absolutely LEGAL.

Mainstream and rightwing media have done an atrocious job discussing the legal issues implicated by President Obama's immigration policy. While rightwingers clearly believe the president's policies constitute treason, at a minimum, the mainstream media has not thoroughly educated the public regarding the lawfulness of the orders. Thankfully, law professors blog! I wrote a very lengthy post on Facebook that documents President Obama's authority to shape immigration policy in the manner he announced yesterday. I am reposting this information for those of you who follow my blog on Blogger. Enjoy.

Immigration Reform

ATTENTION: Before you can argue that the government has violated a law, you must actually READ the law.

FACT: Congress has the exclusive power to pass laws regarding immigration (U.S. Const. Article I, Section 8, Cl. 4).

FACT: Executive Power of the US is vested in the President, which means the President, not Congress, executes the immigration laws (U.S. Const. Article II, Sect. 1, Cl. 1).

FACT: Congress can give a certain amount of discretion to the Executive regarding the enforcement and implementation of federal law – so long as the statute provides an “intelligible principle” to guide the Executive. If this occurs, then Executive decisions regarding enforcement of the law do not constitute impermissible legislative action. Instead, it is merely execution. This rule is called the “nondelegation doctrine.” Congress does not unlawfully delegate its legislative powers to the Executive if the legislation contains coherent rules for the Executive to follow. See Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 465 (2001). 

FACT: The Immigration and Nationality Act (INA) is a federal statute that establishes legal rules and requirements regarding immigration and naturalization (8 U.S.C. Sect. 1103-1778).

FACT: Consistent with the Constitution, the INA gives the Executive Branch (President, Homeland Security, Attorney General, and Secretary of State) the power to enforce immigration laws (8 U.S.C. Sect. 1103-1104).

FACT: The Executive Can "Cancel" the Removal of Certain Deportable Individuals. 
The INA allows the Attorney General to cancel removal (deportation) or adjust the status of certain categories of undocumented individuals. The statute explicitly spells out the criteria for doing so. Thus, the statute provides an “intelligible criteria” for the Attorney General to follow. (8 U.S.C. Section 1229b(a)-(b)).

Conditions for Cancellation of Removal: More specifically, the INA allows the Attorney General to cancel the removal of a deportable individual who (1) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (2) has been a person of good moral character during such period; (3) has not been convicted of an offense [defined in several sections of the statute]; and (4) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. This straightforward provision indisputably states an intelligible principle. (8 U.S.C. Section 1229b(b))

FACT: The Executive Can Give Temporary Protected Status to Certain Deportable Individuals.
The INA also allows the Attorney General to grant “Temporary Protected Status” (TPS) to deportable individuals from certain countries that the Attorney General has placed on a TPS list. As required by Supreme Court doctrine, the INA gives SPECIFIC guidelines – or an intelligible principle – for the Attorney General to follow when determining whether to give TPS designation to a country. The statutory factors include serious conditions in the individual’s home country, like armed conflict; natural disasters; a request for temporary protected status by the country; or “extraordinary and temporary conditions” that preclude the safe return of the individual, so long as TPS does not conflict with the interests of the US.  (8 U.S.C. Sections 1254a-i)

FACT: The Executive Must Provide Employment Authorization for TPS Individuals. 
The INA also provides that the Attorney General SHALL “authorize the alien [who has received TPS designation] to engage in employment in the United States and provide the alien with an ‘employment authorized’ endorsement or other appropriate work permit.” The current TPA list includes several nations in Africa and Central America.

SUMMARY: Federal law allows the Executive to cancel the removal of deportable individuals, give TPS designation to countries and individuals from those nations. Federal law also REQUIRES the Executive to give work permits to individuals who receive TPS designation.

FACT: President Obama's description of his proposals indicate that his policies lie squarely within the statutory powers given by Congress to him, Homeland Security, and the Attorney General. President Obama’s orders would allow individuals “who have lived in the United States for at least five years” to apply for relief from deportation and for certain individuals who have not committed crimes to apply for work permits. These are all powers that lie within the discretion of the Executive under the Article II of the Constitution and within the INA.

These are just some of the potential powers that President Obama could invoke as authority for his immigration policies. Because the President’s orders are consistent with the powers granted to the Executive by Congress, he is not making law. Instead, his orders would only enforce law, using the clear guidelines Congress provided in the INA.

OPINION: If you have NOT read the INA but you have concluded that President Obama’s proposed immigration orders violate federal law or the Constitution, then you are contributing to one of the worst problems in our society: pontificating about important legal and policy issues without a basic understanding of the underlying rules that govern the issues. You need to grow up, read, and grow an open mind. You are a victim of your own stubborn refusal to accept any fact that conflict with your world view. In other words, you are an uninformed, anti-intellectual, partisan hack. But, perhaps, you already knew that.


Marty Lederman
Walter Dellinger

Also, the Office of Legal Counsel (Department of Justice) has released its own memorandum that provides legal authority for President Obama's actions.

Monday, August 25, 2014

Obamacare v. Affordable Care Act

Washington Post columnist E.J. Dionne writes about Arkansas Democratic Senator Mark Pryor's political advertisement that touts his vote for the "Affordable Care Act." As Dionne reports, polls show that when people hear details about the Affordable Care Act, they actually like the provisions, even if they hate "Obamacare" (yes - stupid). But, you have to call it the Affordable Care Act in order for them to "hear" anything.

Obamacare is a pejorative and malleable term. People come to it with emotional opinions. These opinions are often fixed and unmovable -- even (especially?) when they derive from a gross misunderstanding (or no understanding) of the legislation.

It is probably not a coincidence that, while Obama is highly unpopular in Arkansas, the state had the greatest reduction in uninsured residents after the implementation of the Affordable Care Act. In a rational world, that fact would probably help Obamacare supporters like Pryor. Unfortunately, we do not occupy a world where rational thought determines policy preferences.

Election Day Tomorrow - Florida Democratic Governor's Primary

Tomorrow, Florida Democrats will choose a candidate to challenge incumbent Governor Rick Scott. Although Scott's first term was plagued with corruption, constitutional violations, and widespread unpopularity, he has recent managed to regain voter confidence. Polls that show him in the lead or close indicate that Independent male voters and white women are helping Scott.

The Democratic primary season was nonexistent. Candidate Charlie Crist (also former governor and Republican) refused to debate his challenger Nan Rich. Although Rich is a long-time Democrat, many Florida voters believe Crist is the only viable candidate for the Democrats. That is probably a wise assessment. Florida is heavily divided in state-wide elections. Crist attracts voters all over the political spectrum. Rich does not. Many hardcore Democrats really want Rich on the ticket. Others, however, want a victory in November.

Tuesday, January 7, 2014

Is Florida Governor Rick Scott Controlling the Search for a New President at FAU?

The Board of Directors of Florida Atlantic University has released the names of 10 finalists for the school's next president. The list contains some interesting demographics. 
First, only two candidates, David Brennan and Mary Holz-Clause, who are not white men, appear on the list. Interestingly, their names are at the bottom of the list released by the Miami Herald. The list, however, is not alphabetized. It is unclear whether the search committee sorted the names this way and, if it did, why. 

Perhaps the placement of the candidates on the list demonstrates, as one independent blog contends, that the candidates are simply tokens. Staff from the Broward/Palm Beach New Times attended the meeting during which the committee narrowed the field of candidates from 61 to 10 in just under an hour (a remarkable speed). According to the New Times, the committee chose Holz-Clause at the very last minute in order to replace another candidate. The committee mistakenly believed that Dr. Gayle L. Ormiston of Marshall University, whom was chosen explicitly for "diversity," is a woman; Ormiston is, however, a man. The New Times reports that the committee added Holz-Clause in order to have one woman on the list of candidates. Committee members also allegedly joked about their tokenism:  
"We're going to hold it against him that 'she's' a 'he'?" one panelist joked. To which another remarked, "Let's not go there." Don't pack your bags, Dr. Holz-Clause.
The racial and sexual demographics of the pool strongly suggest that the committee only inserted a white woman and a black man on the list of finalists as tokens. The position is reserved for a white male candidate.  If so, this would clearly violate federal and state law.

Another interesting aspect of the finalists is that most of them have backgrounds in business. Governor Rick Scott has expressed his disdain for social sciences and humanities on many occasions. He wants to turn state-run educational institutions into corporations, even though they serve the public-- not private shareholders. The lack of academic diversity compounds the homogeneity of identity and cultural backgrounds among the candidates. 

Finally, Jeff Atwater and George LeMieux, two Republican politicians and close supporters of Florida Governor Rick Scott, appear at the very top of the list. Florida news media only recently reported that they had decided to apply for the position. Days later, they have become finalists, possibly the "top" finalists. This is probably the most disturbing aspect of the search. 

While some schools have hired politicians as presidents, the fact that allies of a sitting governor have made the list -- one Democratic politician who applied did not -- raises flags. Also, Governor Scott gave LeMieux a ringing endorsement for the job. According to the Miami Herald, Scott praised LeMieux the day before he even announced his candidacy. These facts suggests meddling, if not complete control, of the search by the state and a lack of faculty governance. That neither of these two politicians possesses a doctorate, a pretty standard achievement for a university president, is even more telling.
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