Politics: November 2014 Archives

Law professor Josh Blackman has done a detailed analysis of the legal advice given to President Obama regarding his executive order effectively granting amnesty to millions of illegal immigrants. The White House's Office of Legal Counsel (OLC) drew some very fine distinctions that have escaped the attention of the popular press.

The gist of it is this: No, a president can't simply decide not to enforce a law on the books. Prosecutorial discretion has to be exercised on a case-by-case basis. The administration may adopt guidelines that prosecutors should consider when deciding whether or not to prosecute, but a policy that precludes automatic application to an entire class. Some relevant quotes from the OLC memo:

We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria....

Finally, lower courts, following Chaney, have indicated that non-enforcement decisions are most comfortably characterized as judicially unreviewable exercises of enforcement discretion when they are made on a case-by-case basis.... Individual enforcement decisions made on the basis of case-specific factors are also unlikely to constitute "general polic[ies] that [are] so extreme as to amount to an abdication of [the agency's] statutory responsibilities." Id. at 677 (quoting Chaney, 477 U.S. at 833 n.4). That does not mean that all "general policies" respecting non-enforcement are categorically forbidden: Some "general policies" may, for example, merely provide a framework for making individualized, discretionary assessments about whether to initiate enforcement actions in particular cases. Cf. Reno v. Flores, 507 U.S. 292, 313 (1993) (explaining that an agency's use of "reasonable presumptions and generic rules" is not incompatible with a requirement to make individualized determinations). But a general policy of non-enforcement that forecloses the exercise of case-by-case discretion poses "special risks" that the agency has exceeded the bounds of its enforcement discretion. Crowley Caribbean Transp., 37 F.3d at 677....

Further, although the proposed policy is not a "single-shot non-enforcement decision," neither does it amount to an abdication of DHS's statutory responsibilities, or constitute a legislative rule overriding the commands of the substantive statute. Crowley Caribbean Transp., 37 F.3d at 676-77. The proposed policy provides a general framework for exercising enforcement discretion in individual cases, rather than establishing an absolute, inflexible policy of not enforcing the immigration laws in certain categories of cases.

In another entry, Blackman imagines President Rick Perry issuing an executive order to "to defer all prosecutions for any tax payer that pays at least 17% of their flat tax, even if the old brackets suggest they owe more" among other discretionary steps.

MORE: This week's "cold open" on Saturday Night Live featured a new Schoolhouse Rock video: Who needs a bill when you can issue an executive order?

Last last week, NRO's Charles C. W. Cooke traced the transformation of Barack Obama from the 2008 senator who wanted to rein in the executive branch to the 2014 president who has gone well beyond the actions which he had condemned in his predecessor's administration:

Noting in 2008 that he "taught constitutional law for ten years," and in consequence took "the Constitution very seriously," Obama determined that "the biggest problems that we're facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all." "That," the candidate assured his audience, is "what I intend to reverse when I'm president of the United States of America."...

And yet, just one short year after he had told students that he was hamstrung by the rules, the president did precisely what he said he could not, refusing to "enforce and implement" those "very clear" laws and abdicating disgracefully his "appropriate role as president." Obama called this maneuver "DACA," although one imagines that James Madison would have come up with a somewhat less polite term.

Evidently, the new approach suited the president. Soon thereafter, he began to make extra-legislative changes to Obamacare, without offering any earnest legal justifications whatsoever; he responded to Congress's refusal to raise the minimum wage by rewriting the Service Contract Act of 1965; and, as a matter of routine, he took to threatening, cajoling, and mocking Congress, and to informing the country's lawmakers that by declining to consent to his will they were refusing to do "their jobs." In Obama's post-2011 world, it seems, legislators are not free agents but parliamentary subordinates possessed of two choices: either they do what he wants, or they watch him do what he wants. Refusing assent seems to be regarded as an entirely illegitimate option. This, it should be perfectly obvious, is the attitude not of the statesman, but of the mugger. "Give me your wallet," the ruffian says, "or I will take it by force." That progressives who once championed the man for his calm and his virtue have taken to twisting themselves into knots in his defense should tell us all we need to know about their broader sincerity -- and his.

At The Daily Signal, Hans von Spakovsky explains how Obama's amnesty differs from Reagan and Bush 41 executive orders related to immigration:

In 1986, Congress passed the Immigration and Reform Control Act (IRCA), which provided a general amnesty to almost three million illegal immigrants. According to the Associated Press, Reagan acted unilaterally when his Immigration and Naturalization Service commissioner "announced that minor children of parents granted amnesty by [IRCA] would get protection from deportation." In fact, in 1987 former Attorney General Ed Meese issued a memorandum allowing the INS to defer deportation where "compelling or humanitarian factors existed" for children of illegal immigrants who had been granted amnesty and, in essence, given green cards and put on a path towards being "naturalized" as citizens. In announcing this policy, Reagan was not defying Congress, but rather carrying out the general intent of Congress which had just passed a blanket amnesty for millions of illegal immigrants....

The Bush administration relaxed these technical requirements under a "Family Fairness" policy to defer deportation of the spouses and children of illegal immigrants who were allowed to stay in this country and seek naturalization through the IRCA amnesty. Shortly thereafter, Bush worked with Congress to pass the Immigration Act of 1990, which made these protections permanent. Significantly, the Bush policy and the 1990 Act affected only a small number of immigrants-about 180,000 people-in comparison to Obama's past (his 2012 implementation of the Deferred Action for Childhood Arrival program) and anticipated unilateral actions that will affect millions of immigrants.

Congressman Raul Labrador said on MSNBC that House Republicans and Democrats were close to a bipartisan deal on immigration, but the White House put a stick in the spokes:

"[The House bill] was something that would be acceptable to the House, would include all of the areas of immigration we needed to do. It was going to include border security, interior security, and the more the White House heard about what the House was doing, the more they interfered. His chief of staff, the president's chief of staff at the time, decided to call House Democrats and tell them that they needed to stop negotiating with House Republicans because they wanted the only vehicle for immigration reform, they want it to be the Senate bill. The president is in essence telling the American people it is only the Senate bill that is the only vehicle for immigration reform and that nothing else is acceptable."

Jonathan Gruber is the MIT economics professor, often called the "architect of Obamacare," who has said publicly that Obamacare's passage owed much to the "stupidity of the American people" and that its authors necessarily obfuscated the impacts on taxpayers in order to get the bill passed.

"Lack of transparency is a huge political advantage," Gruber said. "Call it the stupidity of the American voter or whatever. But basically, that was really, really critical to getting the thing to pass."

Gruber added that he wished "we could make it all transparent," but said the bill would not have passed if not for the administration's art of deception on key features of the law.

"This bill was written in a tortured way to make sure CBO did not score the mandate as taxes," Gruber said. "If you had a law that made explicit that healthy people pay in and sick people get money, it would not have passed."

The University of Pennsylvania deleted the video but restored it after public outcry. Three additional videos have surfaced of Gruber making the same argument in different appearances.

On MSNBC's Morning Joe, former Vermont Governor and Democratic National Committee chairman Howard Dean expressed outrage at Gruber's comments:

"The problem is not that he said it-the problem is that he thinks it," Dean said. "The core problem under the damn law is it was put together by a bunch of elitists who don't fundamentally understand the American people. That's what the problem is."

You may recall that Gruber was cited earlier this year as stating on at least seven occasions that Obamacare subsidies were intended as an incentive for states to set up their own Obamacare exchanges. If a state refused to set up their own exchanges, the subsidies would be denied to the citizens of that state, who would, Gruber hoped, pressure their state politicians to establish a state exchange. Now Gruber calls that provision of the law a "typo," but it is the central issue in Oklahoma Attorney General Scott Pruitt's challenge to the Obamacare law.

House Democrat Leader Nancy Pelosi, Speaker when the bill passed, is now claiming never to have heard of Gruber. But Hot Air has a screen grab from Pelosi's website and a video clip showing that Nancy Pelosi cited Jon Gruber as an authority in arguing for Obamacare's passage.

Here's Pelosi on November 5, 2009, citing Gruber's analysis of the Democrats' Obamacare bill.

MORE:

Gruber is also described as the architect of Romneycare, the Massachusetts socialized medicine program on which Obamacare is based. Mitt Romney should have been smart enough to know that if you want a reform grounded in economic reality, you go to the University of Chicago or George Mason U. You don't go to the statists and socialists that define the economic department at my alma mater.

Keith Hennessey writes that Obamacare is far from the only government program that has been enacted by hiding subsidies and costs. Hennessey has a long list that only scratches the surface. Hennessey writes:

Apparently Dr. Gruber thinks it's OK to lie to American voters when his allies are in power to enact policies that he wants but the voters wouldn't. He then says American voters are "stupid" both for not agreeing with his value choices and for not figuring out the deception.

I disagree.

When you strip away all the complexity, economic policy is ultimately an expression of elected officials making difficult value choices. If over time these officials make value choices that do not reflect the values of the people whom they represent, they can, should, and will be replaced.

When these same elected officials, and those who advise them, deliberately construct policies to hide value choices that would be unpopular were they transparent and explicit, we end up with two terrible outcomes. We get policies that do not reflect our values, and we re-elect representatives who are lying to us.

The National Journal's Ron Fournier, who emphatically identifies himself as "not 'on the right,'" objects to efforts to spin the story as one in which only conservatives are outraged:

[Gruber] called you stupid. He admitted that the White House lied to you. Its officials lied to all of us--Republicans, Democrats, and independents; rich and poor; white and brown; men and women.

Liberals should be the angriest. Not only were they personally deceived, but the administration's dishonest approach to health care reform has helped make Obamacare unpopular while undermining the public's faith in an activist government. A double blow to progressives....

Last year, The Post helped document how Obama and his advisers knowingly misled the public during his 2012 reelection campaign by repeatedly saying that, under Obamacare, people could keep their doctors and keep their health plans. To knowingly mislead is to lie.

"It's hard to know what might have happened if the truth had won the day," writes Post columnist Kathleen Parker. "But we do know that truth squandered is trust lost."

And so even I have to admit, as a supporter, that Obamacare was built and sold on a foundation of lies. No way around it, unless you're willing to accept a political system that colors its lies--the reds, the whites, and the blues.

STILL MORE: In a June 2012 interview with PBS Frontline, Gruber tells us that the decision to mislead on employer-provided medical insurance went all the way to the top.

Here's what Gruber says in the video:

Now, the problem is, it's a political nightmare, ... and people say, "No, you can't tax my benefits." So what we did a lot in that room was talk about, well, how could we make this work? And Obama was like, "Well, you know" -- I mean, he is really a realistic guy. He is like, "Look, I can't just do this." He said: "It is just not going to happen politically. The bill will not pass. How do we manage to get there through phases and other things?" And we talked about it. And he was just very interested in that topic.

That ultimately became the genesis of what's called the "Cadillac tax" in the healthcare bill which I think is one of the most important and bravest parts of the health care law and, um, doesn't get nearly enough credit.

In that same PBS Frontline episode, Gruber explains the three key elements that made Romneycare in Massachusetts "work": A relatively low number of uninsured, an insurance market "destroyed" (Gruber's word) by a previously-adopted requirement to ignore pre-existing conditions, and most of all, $400 million a year in Other People's Money:

Third, we had a major source of financing in place, which we had formerly had a pretty powerful senator named Ted Kennedy who had been delivering about $400 million a year in slush funds to our safety-net hospitals that the Bush administration was threatening to take away.

The Romney administration, to their credit, went to Washington and said, "Can we keep this money if we use it to cover the uninsured?" And the Bush administration, to their credit, said yes.

So those pieces pulled together made a really interesting opportunity to actually cover the uninsured and fix a broken, non-group market on the federal dime. And that was a really unique opportunity, which I think Romney as a kind of management consultant was excited to take advantage of.

EVEN MORE:

Long-time Boston Herald political columnist Howie Carr says that Gruber (MIT '87, Harvard Ph.D. '92) is just another goober from Cambridge.

Do you realize that every last one of the many disasters that has befallen this nation in the last half-century can be traced right back here to the banks of the Charles River?

C'mon down, Jonathan Gruber, economics professor at MIT. He's the moonbat who, after engineering the ongoing fiasco that is Obamacare, then took a nationwide victory lap in which he repeatedly described the American people as "too stupid" to realize the Democrats were destroying their health care.

Maybe he's right about our stupidity. After all, he cashed in $392,000 worth of federal no-bid contracts to wreck the best health care system in the world, plus another $1.6 million or so in various state wrecking-ball contracts.

This goober, I mean Gruber, now says that when he sneered about how stupid Americans are, he made a mistake. Oddly, he made the same "mistake" five times (and counting). When you say something publicly five times, it's part of your stump speech.

Nice Deb is compiling all the Gruber videos and links to stories and transcripts.

The Conservative Voices blog is self-hosting the Gruber videos, just in case they get taken down on other sites. The Gruber category has entries with individual videos as well. (Gruber's speech to the University of Rhode Island Fall 2012 Honors Colloqium has been deleted from URI's YouTube account, for example, even though they had submitted it to amara.org to crowdsource the transcription of the video.)

NRO's Rich Lowry wants to thank Jonathan Gruber:

He has done us all a favor by affording us an unvarnished look into the progressive mind, which values complexity over simplicity, favors indirect taxes and impositions on the American public so their costs can be hidden, and has a dim view of the average American.

Complexity is a staple of liberal policymaking. It is a product of its scale and reach, but also of the imperative to hide the ball. Taxing and spending and redistributive schemes tend to be unpopular, so clever ways have to be found to deny that they are happening. This is what Gruber was getting at. One reason Obamacare was so convoluted is that its supporters didn't want to straightforwardly admit how much the law was raising taxes and using the young and healthy to subsidize everyone else.

Gruber crowed about the exertions undertaken to make an unpopular tax on expensive health-insurance plans, the so-called Cadillac tax, more palatable. It was levied on employers instead of employees. No one realized, Gruber explained, that the tax would be functionally the same even if not directly imposed on workers. This wasn't a one-off deception. This kind of sleight of hand is crucial to the progressive project, which always involves imposing taxes, regulations, and mandates at one remove from the average person so he or she won't realize that the costs are passed down regardless.

Most liberals would never come out and call Americans stupid in a public forum, as Gruber did. But the debate between conservatives and liberals on health-care policy and much else comes down to how much average Americans can be trusted to make decisions on their own without the guiding, correcting hand of government. An assumption that Americans are incompetent is woven into the Left's worldview. It is reluctant to entrust individuals with free choice for fear they will exercise it poorly and irresponsibly.

It was a good day, a better day that anyone expected, a real wave election.

The reaction of my local liberal friends on Facebook reveal their contempt for the state where they live, their bigoted opinions of conservatives, and their disconnect from political reality. One wrote a very apt "chin-up" post -- the sort of things I've seen conservatives write to console each other after a loss -- but she ended it with this weird attempt at a barb: "And to those of you gleeful over the election results, I just want to remind you that our President is STILL BLACK." I imagine she imagined people like me shaking our fists and gritting our teeth at those words. (Never mind that the first African-American was just elected to the Senate from a Southern state since reconstruction -- and he's a Republican. Never mind that her party never elected an African-American to statewide office or congress during almost a century of dominance in Oklahoma -- but the GOP has.) Now if she'd said "STILL A SOCIALIST" or "STILL A MISERABLE FAILURE AT HOME AND ABROAD" -- that would have spoiled my gloating a bit. But if she thinks the president's ethnic background is the source of conservative dislike, she and her pals are going to continue to lose elections. So much for the soi-disant "reality-based" community.

I spent part of my Tuesday in a library in Hialeah, Florida. I was in the area on business, free during the day but working during the night. The library was in a large city park where I'd hoped to attend a rally with Gov. Rick Scott and former Gov. Jeb Bush that I'd read about online, but I had misread the date. (I think it had been two days before.)

When I arrived and pulled into the parking lot, I found two teams of electioneers, one Democrat and one Republican, handling out pamphlets and ballot cards. An older couple with the Democrat group stopped the car in front of me to chat with the driver and give her some literature. Another Democrat electioneer waved me around the blockade.

Once parked, I walked toward the library and heard an older man calling out to me. He was with a group of a half-dozen volunteers -- both young and old -- holding signs for Republican candidates. He handed me a card for Gov. Scott, a card for the GOP county assessor candidate, and a card listing all the GOP candidates in Miami-Dade County. All three cards were in English on on side and Spanish on the other. The man said to me, "Please vote for Gov. Scott. It's important!" I gave him a thumbs-up and walked on.

This must have been a key precinct, because near the entrance was a reporter in a suit holding a microphone and talking to a camera, occasionally interviewing voters.

Inside the library, I had a view through interior picture windows to the polling station set up in the library's meeting room. I pondered the possibility of pulling a reverse Kathy Taylor -- voting in-person in Florida and absentee in Oklahoma -- but I could see that I'd be thwarted by Florida's racist voter suppression laws. Florida does not have election day registration, and with photo ID required, I couldn't very well pretend to be someone else.

I was pleased to see that Florida, like Oklahoma, uses scanned paper ballots. Voters are given a big green folder to carry their ballots privately from the voting carrels to the ballot box scanners. I watched as several waves of voters came and went. Election workers walked the floor, directing incoming voters to the sign-in desk and helping voters with finished ballots feed them into the machines.

That evening I spent an hour after the polls closed at the Miami-Dade Republican watch party at a Cuban restaurant on the western edge of the city. We ate fried plantain chips, carnitas, empanadas, and tequeños while cheering the results. The crowd of about 60 -- but this only one of many GOP watch parties around Miami, I learned -- were especially pleased that the local Democrat congressman, Joe Garcia, had conceded defeat to Republican school baord member Carlos Curbelos. We all held our breath as Gov. Scott maintained his narrow lead over the oompa-loompa-colored flip-flopping former governor, Charlie Crist.

More analysis will have to wait, but here are a few post-mortems worth your time:

The New York Post's Michael Goodwin called for a repudiation of Obamaism ("a quasi-socialist commitment to a more powerful government at home and an abdication of American leadership around the world") and the voters delivered.

Via Ace, a good Washington Post story on how the GOP national apparatus upped their game to win the Senate this year.

The finger-pointing begins: Chris "Tingle Up My Leg" Matthews says Obama lost the midterms because he's surrounded by yes-men.

Pro-immigration-law-enforcement Democrat Mickey Kaus notes that Democrat supporters of amnesty lost their seats.

Philip Klein notes that almost half of the Democrat Senators who voted for Obamacare are gone -- four more lost on Tuesday and one more is likely to lose in December.

MORE:

Some Republicans are saying that, since this was Pres. Obama's attitude toward Republicans in 2009, this should be our newly elected Republicans' attitude toward the Democrats:

(For the record, I liked the Depp version better than the Wilder version and this scene is one of the reasons why, but it works for the current purpose.)