Kevin Drum

Has Obama Gone Too Far? 5 Key Questions Answered About the Legality of His Immigration Plan

| Fri Nov. 21, 2014 12:27 AM EST

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. Here are answers to five key questions about the legality of the immigration plan Obama announced tonight:

  1. The linchpin of Obama's executive action is the president's inherent authority to engage in prosecutorial discretion, and just about everyone agrees that this authority is nearly unconditional. Speaking to a meeting of the conservative Federalist Society, Christopher Schroeder said: "I think the roots of prosecutorial discretion are extremely deep. The practice is long and robust. The case law is robust." Erwin Chemerinsky and Samuel Kleiner agree: "It has always been within the president’s discretion to decide whether to have the Department of Justice enforce a particular law. As the Supreme Court declared in United States v. Nixon, 'the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.'"
     
  2. OK, but exempting entire categories of people from prosecution? It turns out that current immigration law explicitly recognizes this. Margaret Stock, a Republican immigration lawyer and a Federalist Society member, says: "The Immigration and Nationality Act and other laws are chock-full of huge grants of statutory authority to the president. Congress gave the president all these powers, and now they are upset because he wants to use them. Other presidents have used the same authority in the past without an outcry."
     
  3. But are those grants really broad enough? Apparently so. In fact, immigration law provides the president an unusually broad scope for executive action. Eric Posner writes: "The president’s authority over this arena is even greater than his authority over other areas of the law....In 2012, the Supreme Court recognized the vast discretion of the president over immigration policy. In the case Arizona v. United States, the court struck down several Arizona laws that ordered state officials to enforce federal immigration laws, on pain of state penalty....As [Adam] Cox puts it, in a recent academic article, the court’s reasoning "gives executive branch officials near complete control over the content of immigration law.'"
     
  4. Still, even if this is true in theory, is it really true in practice? As it turns out, yes, there's plenty of prior precedent for exactly this kind of thing. As the LA Times reports, "Obama would not be the first president to push through immigration reform by working outside of Congress." In fact, presidents from FDR through Bill Clinton have issued executive orders that deferred deportation for various categories of undocumented immigrants. And while it's true that Obama's action will likely affect more people than any of the previous ones, that's a political issue, not a legal one. From a strictly legal viewpoint, Obama is doing something that has plenty of past precedent.
     
  5. Finally, what about work permits? Even if Obama can legally defer prosecution—a right conferred by both constitutional authority and statutory language—does that also give him the right to issue work permits to immigrants affected by his order? Surprisingly, perhaps, that has a long pedigree too—one that goes back not just to DACA (Obama's 2012 mini-DREAM executive order), but well before that. David Leopold, former president of the American Immigration Lawyers Association, explains: "The federal regulations governing employment under immigration law existed well before DACA. Under those regulations, any undocumented immigrant granted deferred action — under programs that preceded DACA or coincide with it — had already been able to apply for employment authorization....The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not a direct outgrowth or creation of either."

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.

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No, the Culture Wars Haven't Heated Up. It Just Seems Like They Have.

| Thu Nov. 20, 2014 2:15 PM EST

Andrew Sullivan cogitates today on the seemingly endless outpouring of outrage over relatively small lapses in decent behavior:

I wonder also if our digital life hasn’t made all this far worse. When you sit in a room with a laptop and write about other people and their flaws, and you don’t have to look them in the eyes, you lose all incentive for manners.

You want to make a point. You may be full to the brim with righteous indignation or shock or anger. It is only human nature to flame at abstractions, just as the awkwardness of physical interaction is one of the few things constraining our rhetorical excess. When you combine this easy anonymity with the mass impulses of a Twitterstorm, and you can see why manners have evaporated and civil conversations turned into culture war.

I’m as guilty of this as many....

Why yes! Yes you are, Andrew.

On a more serious note, I actually disagree with his diagnosis of the problem, which has become so common as to be nearly conventional wisdom these days. Here's why: I have not, personally, ever noticed that human beings tend to rein in their worst impulses when they're face to face with other human beings. Sometimes they do, sometimes they don't. Most often, they don't. Arguments with real people end up with red faces and lots of shouting constantly. I just flatly don't believe that the real problem with internet discourse is the fact that you're not usually directly addressing the object of your scorn.1

So what is the problem? I think it's mostly one of visibility. In the past, the kinds of lapses that provoke internet pile-ons mostly stayed local. There just wasn't a mechanism for the wider world to find out about them, so most of us never even heard about them. It became a big deal within the confines of a town or a university campus or whatnot, but that was it.

Occasionally, these things broke out, and the wider world did find out about them. But even then, there was a limit to how the world could respond. You could organize a protest, but that's a lot of work. You could go to a city council meeting and complain. You could write a letter to the editor. But given the limitations of technology, it was fairly rare for something to break out and become a true feeding frenzy.

Needless to say, that's no longer the case. In fact, we have just the opposite problem: things can become feeding frenzies even if no one really wants them to be. That's because they can go viral with no central organization at all. Each individual who tweets or blogs or Facebooks their outrage thinks of this as a purely personal response. Just a quick way to kill a few idle minutes. But put them all together, and you have tens of thousands of people simultaneously responding in a way that seems like a huge pile-on. And that in turn triggers the more mainstream media to cover these things as if they were genuinely big deals.

The funny thing is that in a lot of cases, they aren't. If, say, 10,000 people are outraged over Shirtgate, that's nothing. Seriously. Given the ubiquity of modern social media, 10,000 people getting mad about something is actually a sign that almost nobody cares.

The problem is that our lizard brains haven't caught up to this. We still think that 10,000 outraged people is a lot, and 30 or 40 years ago it would have been. What's more, it almost certainly would have represented a far greater number of people who actually cared. Today, though, it's so easy to express outrage that 10,000 people is a pretty small number—and most likely represents nearly everyone who actually gives a damn.

We need to recalibrate our cultural baselines for the social media era. People can respond so quickly and easily to minor events that the resulting feeding frenzies can seem far more important than anyone ever intended them to be. A snarky/nasty tweet, after all, is the work of a few seconds. A few thousand of them represent a grand total of a few hours of work. The end result may seem like an unbelievable avalanche of contempt and derision to the target of the attack, but in real terms, it represents virtually nothing.

The culture wars are not nastier because people on the internet don't have to face their adversaries. They're nastier because even minor blowups seem huge. But that's just Econ 101. When the cost of expressing outrage goes down, the amount of outrage expressed goes up. That doesn't mean there's more outrage. It just means outrage is a lot more visible than it used to be.

1I'll concede that this is potentially a problem with a very specific subset of professional troll. Even there, however, I'd note that the real world has plenty of rough equivalents, from Code Pink to the Westboro Baptist Church lunatics.

A Follow-Up: Why the Working and Middle Classes Don't Like Obamacare Much

| Thu Nov. 20, 2014 11:51 AM EST

Here's an interesting chart that follows up on a post I wrote a few days ago about Democrats and the white working class. Basically, I made the point that Democrats have recently done a lot for the poor but very little for the working and middle classes, and this is one of the reasons that the white working class is increasingly alienated from the Democratic Party.

I got various kinds of pushback on this, but one particular train of criticism suggested that I was overestimating just how targeted Democratic programs were. Sure, they help the poor, but they also help the working class a fair amount, and sometimes even the lower reaches of the middle class. However, while there's some truth to this for certain programs (unemployment insurance, SSI disability), the numbers I've seen in the past don't really back this up for most social welfare programs.

Obamacare seems like an exception, since its subsidies quite clearly reach upward to families in the working and middle classes. Today, however, Bill Gardner points me to a Brookings paper from a few months ago that suggests just the opposite. The authors calculate net gains and losses from Obamacare, and conclude that nearly all its benefits flow to the poor. If I interpolate their chart a bit, winners are those with household incomes below $25,000 or so, and losers are those with incomes above $25,000.

The authors are clear that their estimates are not definitive, thanks to difficulties in performing some of the calculations. And obviously they're just averages. Quite plainly, there are some families with higher incomes that benefit from Obamacare.

Still, there are fewer than you think—partly because the subsidies decline at higher incomes and partly because people with higher incomes already have employer insurance and don't need Obamacare. That said, I don't want to make too much of this single chart, especially given the measurement difficulties it presents. But I do think it's illustrative. If you think of Obamacare as something that benefits the working and middle classes, you're probably wrong. It may benefit a few of them, but overall it's a cost to them—or, under more generous assumptions, perhaps a wash.

Obviously there's more to this, and Gardner discusses some of the other electoral implications of Obamacare in his post. It's worth a read. But the bottom line is simple: like most of the social welfare programs championed by Democrats, Obamacare is primarily aimed at the poor. Once again, the working and middle classes are left on the outside looking in.

POSTSCRIPT: I'm sure many people will point out that middle class folks benefit from Obamacare in other ways. If they lose their jobs, for example, they can stay insured even if they have a preexisting condition. That's a benefit! However, as Gardner points out, an awful lot of middle-class voters don't know about these kinds of benefits, so it doesn't register with them. Basically, they take a look at who's getting the cash, and for the most part, it's not them.

It Turns Out That Ferguson Is Pretty Typical of America

| Wed Nov. 19, 2014 12:40 PM EST

The Ferguson police department famously arrests blacks at a rate three times higher than other races. A USA Today investigation shows just how commonplace that is:

At least 1,581 other police departments across the USA arrest black people at rates even more skewed than in Ferguson, a USA TODAY analysis of arrest records shows. That includes departments in cities as large and diverse as Chicago and San Francisco and in the suburbs that encircle St. Louis, New York and Detroit.

Those disparities are easier to measure than they are to explain. They could be a reflection of biased policing; they could just as easily be a byproduct of the vast economic and educational gaps that persist across much of the USA — factors closely tied to crime rates. In other words, experts said, the fact that such disparities exist does little to explain their causes.

Curious to know how your city fares? Click here and check out various places in your state. My hometown, it turns out, beats out Ferguson easily, arresting blacks at a rate nearly four times higher than other races. The difference, of course, is that Irvine is only 1.7 percent black to begin with, so there's hardly anyone here to complain about it. That makes it easy to ignore, but that's about all it means.

Voter ID Laws: Terrible Public Policy, But Probably Pretty Feeble

| Wed Nov. 19, 2014 11:47 AM EST

Republican-led voter-ID laws may be pernicious, but Nate Cohn says there are three reasons to think their actual electoral impact is overstated:

To begin with, the true number of registered voters without photo identification is usually much lower than the statistics on registered voters without identification suggest. The number of voters without photo identification is calculated by matching voter registration files with state ID databases. But perfect matching is impossible and the effect is to overestimate the number of voters without identification.

....People without ID are less likely to vote than other registered voters. The North Carolina study found that 43 percent of the unmatched voters — registered voters who could not be matched with a driver’s license — participated in 2012, compared with more than 70 percent of matched voters.

....There’s no question that voter ID has a disparate impact on Democratic-leaning groups....[But] voters without an identification might be breaking something more like 70/30 for Democrats than 95/5. A 70/30 margin is a big deal, and, again, it’s fully consistent with Democratic concerns about voter suppression. But when we’re down to the subset of unmatched voters who don’t have any identification and still vote, a 70/30 margin probably isn’t generating enough votes to decide anything but an extremely close election.

When I looked into this a couple of years ago, I basically came to the same conclusion. Only a few studies were available at the time, but they suggested that the real-world impact of voter ID laws was fairly small. I haven't seen anything since then to suggest otherwise.

None of this justifies the cynical Republican effort to suppress voting via ID laws. For one thing, they still matter in close elections. For another, the simple fact that they deliberately target minority voters is noxious—and this is very much not ameliorated by the common Republican defense that the real reason they're targeted isn't race related. It's because they vote for Democrats. If anything, that makes it worse. Republicans are knowingly making it harder for blacks and Hispanics to vote because they vote for the wrong people. I'm not sure how much more noxious a voter suppression effort can be.

These laws should be stricken from the books, lock, stock and extremely smoking barrel. They don't prevent voter fraud and they have no purpose except to suppress the votes of targeted groups. The evidence on this point is now clear enough that the Supreme Court should revisit its 2008 decision in Crawford v. Marion that upheld strict voter ID laws. They have no place in a decent society.

At the same time, if you're wondering how much actual effect they have, the answer is probably not much. We still don't have any definitive academic studies on this point, I think, but Cohn makes a pretty good case. It's possible that Kay Hagan might have lost her Senate race this year thanks to voter ID laws, but she's probably the only one.

Why Scott Walker Might Be Our Next President

| Wed Nov. 19, 2014 10:38 AM EST

In 2012, I basically considered Mitt Romney a shoo-in for the Republican nomination. I figured that he'd hoover up most of the moderate votes—and despite all the breathless press accounts, moderates still account for at least half of GOP voters—plus a share of the tea partiers, and that was that. The rest of the field would destroy each other as they fought over their own sliver of the tea party vote, eventually leaving Romney battered and unloved, but triumphant.

Sure enough, that's what happened. But I don't see a strong moderate in the field right now. I suppose Jeb Bush and Chris Christie come the closest, but even if they run, they strike me as having some pretty serious problems. Romney was willing to adopt tea party positions across the board, even as he projected a moderate, adult persona, but neither Christie nor Bush will kowtow in quite that way. That's going to cause them problems, and Christie's fondness for showy confrontations is going to be an additional millstone around his neck. Either one might win, but neither seems like an especially likely nominee to me.

All this is a long way of explaining why I think Scott Walker is the frontrunner. He has a record of governance. His persona is generally adult. He doesn't say crazy stuff. Relatively speaking, he's attractive to moderates. But at the same time, the tea partiers love him too. The big strike against him, of course, is that he's lousy on TV. He's a terrible public speaker. And he's just boring as hell. However, Ed Kilgore perfectly explains why this doesn't make him another Tim Pawlenty or John Kasich:

This is why Walker is so very commonly compared to Tim Pawlenty in 2012; the Minnesotan was perfectly positioned to become the most-conservative-electable-candidate nominee in a large but shaky field. And he wound up being the first candidate to drop out, before a single vote (other than in the completely non-official Ames Straw Poll) was cast. His sin was congenital blandness, and the defining moment of his campaign was when he all but repudiated his one great zinger: referring to the Affordable Care Act as "Obamneycare."

But TPaw's demise does point up one big difference between these two avatars of the Republican revival in the Upper Midwest: nobody suspects Scott Walker may be too nice for his party. He may be bland, and a bad orator, but his bad intent towards conservatism's enemies is unmistakable. He's sorta Death by Vanilla, or a great white shark; boring until he rips you apart. I think Republican elites get that, and it excites them. But how about voters?

Mitt Romney managed to base nearly his entire campaign on hating Barack Obama more than anyone else. It worked. Whenever someone started to score some points against his sometimes liberalish record in Massachusetts, he'd just launch into an over-the-top denunciation of Obama and the crowd would go wild. Walker can do the same thing, but without the artifice. Unlike Romney, he really has been fighting liberals tooth and nail for the past four years, and he has the scars to prove it. This will go a long, long way to make up for a bit of blandness.

Besides, it's worth remembering that people can improve on the basics of campaigning. Maybe Walker will turn out to be hopeless. You never know until the campaign really gets going. But if he's serious, he'll get some media training and start working on developing a better stump speech. A few months of this can do wonders.

Predictions are hard, especially about the future. But if he runs, I rate Walker a favorite right now. If his only real drawback is Midwestern blandness—well, Mitt Romney wasn't Mr. Excitement either. Walker can get better if he puts in the work. And if he does, he'll have most of Romney's upside with very little of the downside. He could be formidable.

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Today's Winner in Washington: The Filibuster

| Tue Nov. 18, 2014 8:24 PM EST

Today, Democrats blocked action to approve construction of the Keystone XL pipeline. A few minutes later, Republicans blocked a bill to regulate the bulk collection of phone records by the NSA.

Both bills had majority support. Both failed thanks to filibusters. It's good to see that life is back to normal in Washington DC.

Today's Math You Can Use: Marijuana + Big Corporations = A Lot More Marijuana

| Tue Nov. 18, 2014 4:51 PM EST

Here's a good example of how cavalier snark can get the better of you. This is Kevin Williamson writing at National Review:

From the annals of issues that only intellectuals are capable of misunderstanding: Mark A. R. Kleiman, a professor of public policy at UCLA, is worried that the drug trade might end up being dominated by people who care about making money. My experience with drug dealers suggests very strongly that they are a profit-seeking, entrepreneurial lot as it is.

Har har. Mark is a friend of mine, so I guess I'd be expected to defend him, but I'm pretty sure he didn't mean his short piece about the commercialization of pot to be an attack on the free market. Quite the contrary. In fact, he has a powerful appreciation of the efficiency of the market, and knows very well that drug gangs are actually pitifully incompetent at the basics of modern distribution and logistics. Put them in competition with Philip Morris or RJ Reynolds and they'd go out of business in a few months. At the same time, with a truly modern, efficient multinational corporation at the helm, sales and consumption of marijuana would most likely skyrocket.

Remember what happened to all those mom-and-pop stores when Walmart came into town? It would be about like that.

I don't even know that I agree with Mark about trying to keep pot away from the commercial sector. My guess is that it's not really workable. Still, his argument is simple: The free market is powerful. Big corporations are far, far more efficient than a bunch of hoodlums. So if big corporations start selling drugs, then drug use (and abuse) is going to increase. Maybe a lot. You might still favor complete legalization, and that's fine. But you should at least recognize that it comes with a likely cost, just as it did with cigarettes and alcohol.

Public Evenly Split on Immigration Action

| Tue Nov. 18, 2014 1:30 PM EST

So how does the public feel about President Obama changing immigration rules via executive action? Pretty evenly split, it turns out. According to a USA Today poll, Democrats want action now; Republicans want him to wait; independents are split down the middle; and the overall result is slightly in favor of waiting, by 46-42 percent.

In other words, pretty much what you'd expect. Politically, then, this probably holds little risk for Obama or the Democratic Party. Especially in light of this:

On one more issue, Americans are in agreement: The elections two weeks ago aren't going to make Washington work better. Just 15% predict Obama and the new Congress, now under solid Republican control, will work together more closely to reach bipartisan compromises.

The American public is pretty politically astute, I'd say. They may not be up to speed on all the details of policymaking, but when it comes to the big picture, they know a lot more than the Beltway pundits seem to.

Isn't It About Time to Ask Republicans to Start Acting Like Adults?

| Tue Nov. 18, 2014 11:53 AM EST

David Brooks is unhappy that President Obama continues to be a liberal even though Democrats lost in this year's midterm election:

The White House has not privately engaged with Congress on the legislative areas where there could be agreement. Instead, the president has been superaggressive on the one topic sure to blow everything up: the executive order to rewrite the nation’s immigration laws.

....I sympathize with what Obama is trying to do substantively, but the process of how it’s being done is ruinous. Republicans would rightly take it as a calculated insult and yet more political ineptitude. Everybody would go into warfare mode. We’ll get two more years of dysfunction that will further arouse public disgust and antigovernment fervor (making a Republican presidency more likely).

This move would also make it much less likely that we’ll have immigration reform anytime soon. White House officials are often misinformed on what Republicans are privately discussing, so they don’t understand that many in the Republican Party are trying to find a way to get immigration reform out of the way. This executive order would destroy their efforts.

I continue to not get this train of thought. In 2006, Republicans lost. President Bush's first action was to order a surge in Iraq, which infuriated Democrats. In 2008, Republicans lost. They responded by adopting a policy of obstructing every possible action by Democrats—including even a modest stimulus package during the worst economic downturn since the Great Depression. In 2012, Republicans lost. They responded with brinkmanship over the fiscal cliff, a flat refusal to fill open judicial positions on the DC circuit court, and an endless bellowing rage over Benghazi and other manufactured outrages.

By comparison, all Obama is doing is something he's been saying he'll do for nearly a year. It's not even all that big a deal if you step back for a moment and think about it. Several million undocumented immigrants are going to be told they're officially free of the threat of deportation for a temporary period, as opposed to the status quo, in which they're effectively free of the threat of deportation. Don't get me wrong: it's a big deal for the immigrants affected. But in terms of actual impact on immigration policy writ large? It doesn't really do much.

And yet, this single action is apparently enough to—rightly!—put Republicans into warfare mode. If that's true, I can only conclude that literally anything Republicans don't like is enough to justify going into warfare mode. That's certainly been how it's worked in the past, anyway.

Look: Republicans can decide for themselves if they want to go to war. If they want to pass yet another bill repealing Obamacare, that's fine. If they want to sue the president over the EPA or immigration, that's fine. If they want to approve the Keystone XL pipeline, that's fine. I assume Obama will win some of these battles and lose others, but in any case will treat them as the ordinary cut and thrust of politics instead of declaring them calculated insults that have infuriated him so much he can't possibly ever engage with the GOP again. In other words, he'll act like an adult, not a five-year-old.

This is what we expect from presidents. Why don't we expect the same from congressional Republicans? Why are they allowed to stamp and scream whenever something doesn't go their way, and everyone just shrugs? Once and for all, why don't we demand that they act like adults too?

POSTSCRIPT: I didn't bother with Brooks' claim that Republicans are "privately" discussing real, honest-to-goodness immigration reform, but color me skeptical. If they want to engage on this subject, they need to discuss it with Obama, not between themselves. They've had plenty of time for that, and have never been willing to buck the tea party to get something done. Why would it be any different now? For more, I think Ed Kilgore has about the right take on this.