Obama Grubered us Great on Immigration — UPDATED

But not only in the ways that most of us anticipated, because He did not issue an executive order.

On November 19th, I wrote an article titled Obama’s Grubering and royal amnesty for illegals. Rather than speculate about what Obama would say in His November 20th address and Royal Decree, also known as executive order, I wrote

After reading and interpreting copies of Obama’s address and His Royal Decree, I will try to analyze His Gruberings.

Like many, I had expected Obama to issue an executive order, in contradiction of His many previous acknowledgments that He lacks the authority to deal with immigration that way.

Obama did not issue an executive order as expected and His November 20th immigration address does not include the phrase “executive order.” However, media of all political persuasions, apparently expecting an executive order, used the phrase often and interchangeably with “executive action.” Obama’s address uses neither phrase.

Facially, the phrases “executive order” and “executive action” seem to mean about the same thing: issuing an executive order is an action taken by the President, so using the phrases interchangeably seems reasonable. However, “executive action” is a term of art and very different from “executive order.” Although I practiced administrative law in Washington for more than twenty-five years before retiring in 1996, the differences escaped me until I read and thought about the matter yesterday. Perhaps I can take solace in the statement in the article linked and quoted immediately below to the effect that Obama is the first President in modern history to have used executive actions in lieu of executive orders.

The best explanation of the differences I’ve been able to find is at U.S. Politics About. The article deals with executive actions on gun control rather than immigration, but the principles are the same,

Executive Actions Versus Executive Orders

Executive actions are any informal proposals or moves by the president. The term executive action itself is vague and can be used to describe almost anything the president calls on Congress or his administration to do. But most executive actions carry no legal weight. Those that do actually set policy can be invalidated by the courts or undone by legislation passed by Congress. [Emphasis added.]

The terms executive action and executive order are not interchangeable. Executive orders are legally binding and published in the Federal Register, though they also can be reversed by the courts and Congress

A good way to think of executive actions is a wish list of policies the president would like to see enacted. [Emphasis added.]

When Executive Actions Are Used Instead of Executive Orders

Presidents favor the use of nonbinding executive actions when the issue is controversial or sensitive. For example, Obama carefully weighed his use of executive actions on gun violence and decided against issuing legal mandates via executive orders, which would have gone against the legislative intent of Congress and risked enraging lawmakers of both parties. [Emphasis added.]

. . .

Use of Executive Actions by Other Presidents

Obama was the first modern president to use executive actions in lieu of executive orders or executive memoranda. [Emphasis added.]

Criticism of Executive Actions

Critics described Obama’s use of executive actions as an overreach of his presidential powers and an unconstitutional attempt to bypass the legislative branch of government, even though the most substantial of the executive actions carried no legal weight.

. . . .

But even the Obama White House acknowledged that most of the executive actions carried no legal weight. Here’s what the administration said at the time the 23 executive actions [on gun control] were proposed:

“While President Obama will sign 23 Executive Actions today that will help keep our kids safe, he was clear that he cannot and should not act alone: The most important changes depend on Congressional action.”

Since Obama’s executive action or actions seem not to have been published, it is not clear which Federal agencies He has asked to do what. However, the Department of Homeland Security (DHS) released an “explanation” of what it intended to do. It used much of the phraseology Obama used in His November 20th address. On November 19th, the Department of Justice (DOJ) issued an opinion concerning a draft of DHS’ plan to prioritize the deportation of various classes of illegal immigrants. The DOJ found most of what DHS contemplated to be lawful, but stated that “the proposed deferred action program for parents of DACA [Deferred Action on Childhood Arrivals] recipients would not be permissible.” The distinctions as explained by the DOJ are complicated. However,  this is what Obama said on November 20th:

So we’re going to offer the following deal: If you’ve with been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is. [Emphasis added.]

That does not seem to exclude the parents of Deferred Action on Childhood Arrival recipients. New Federal regulations may (or may not) draw the distinction noted by the DOJ.

Federal regulations

The Administrative Procedure Act,

enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review agency decisions. It is one of the most important pieces of United States administrative law. The Act became law in 1946.

The APA applies to both the federal executive departments and the independent agencies. U.S. Senator Pat McCarran called the APA “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated” by federal government agencies. The text of the APA can be found under Title 5 of the United States Code, beginning at Section 500.

The Act establishes rule making procedures and generally, but not always, requires that “notice and comment” procedures be used before rules are adopted.

Rulemaking processes are generally designed to ensure that

The public is informed of proposed rules before they take effect;

The public can comment on the proposed rules and provide additional data to the agency;

The public can access the rulemaking record and analyse the data and analysis behind a proposed rule;

The agency analyses and responds to the public’s comments;

The agency creates a permanent record of its analysis and the process;

The agency’s actions can be reviewed by a judge or others to ensure the correct process was followed.

However, Section 553 of the Act states,

(a) This section applies, according to the provisions thereof, except to the extent that there is involved –

(1) a military or foreign affairs function of the United States; or

(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. [Emphasis added.]

We should eventually learn which, if any, new immigration regulations issued in accordance with Obama’s recent executive action will be categorized as “relating to agency management” and therefore not made subjects of the notice and comment procedures.

Obama is a master of grubering and he grubered immigration reform masterfully.

Here are two of many examples. According to a Washington Post fact check,

President Barack Obama made some notable omissions in his remarks about the unilateral actions he’s taking on immigration.

A look at his statements Thursday and how they compare with the facts:

OBAMA: “It does not grant citizenship, or the right to stay here permanently, or offer the same benefits that citizens receive. Only Congress can do that. All we’re saying is we’re not going to deport you.”

THE FACTS: He’s saying, and doing, more than that. The changes also will make those covered eligible for work permits, allowing them to be employed in the country legally and compete with citizens and legal residents for better-paying jobs.

That article goes on at length. Daniel Horowitz, writing at Conservative Review identified the Top 10 Lies from Obama’s Nullification Speech. Others have also made similarly valid points about the bovine fecal matter which permeates His address.

However, Obama’s grubering went beyond simply misstating and glossing over facts. By leaving the impression that He was issuing an executive order — rather than an executive action — He misled the media as well as many others as to how He intends to proceed.

Michael Gerson wrote at the Washington Post,

There are any number of marvelous things one might do as president, if Congress were not such a checked and balanced mess. But future presidents now have a new method at their disposal: Declare a long-running debate to be a national emergency. Challenge Congress, under threat of unilateral executive action, to legislate on the topic before your term runs out. And when lawmakers refuse, act with the most expansive definition of presidential power. [Emphasis added.]

. . . .

By crossing this particular Rubicon, Obama has given up on politics, which is, from one perspective, understandable. He doesn’t do it well. He has always viewed the political process as sullied, compared with the reasonableness of his policy insights. In the aftermath of his party’s midterm defeat, he diagnosed a problem of salesmanship. “It’s not enough just to build a better mousetrap,” he said. “People don’t automatically come beating to your door. We’ve got to sell it.” [Emphasis added.]

. . . .

[T]here is a cost. He has taken an important national discussion and turned it into just another controversial Obama initiative. He has resolved one portion of the immigration debate while poisoning the possibility of broader reform and politically discrediting Republicans who might be open to it. [Emphasis added.]

Might Obama have spoken as He did purposely to throw the Republican opposition into a dither and thence into disfavor, believing that by misleading them into thinking that He was doing more than He actually did they would get angry, excited and make public statements that would turn out to have been brash as well as incorrect? Might He have believed that, after being shown to be brash and wrong, they would fall into line with His immigration program or at least suffer severely adverse political consequences for failing to do so?

According to Fox News, the Republicans were ready before November 20th to do whatever it might take to halt Obama’s immigration plan.

Obama’s move sparked a number of comparisons with monarchies, the Revolutionary War, and tyranny, with Sen. Chuck Grassley, R-Iowa, going so far as to say that not even King George III had such power over the American colonists in 1776. “It is no exaggeration to say the freedom of the American people is at stake,” he said.

Rep. Randy Forbes, R-Va., predicted doom. “We’re going to be headed for a constitutional crisis that the president’s making,” he told Lou Dobbs on the Fox Business Network on Wednesday. “He’s going to poison this well so much that we’re not going to be able to do the fixes that we really need to do [to] reform the immigration system.”

An article at the North American Law Center asked, “Does Barack Hussein Obama have any constitutional authority to alter U.S. Immigration and Naturalization laws or rules via Executive Order?” and explained why He does not. It was stated,

The power of Executive Orders are limited to items under the legal purview of the Executive Branch and they are limited to “executing the laws” established by Congress. Executive powers do not extend to law-making authority, nor do they extend to subverting or circumventing the laws of our land.

True enough, but Obama did not issue an executive order.

What can and should the Congress do now?

It would be premature to file a lawsuit now since — in addition to misleading, obfuscating and otherwise lying about facts — Obama merely told administrative agencies to consider promulgating rules that He wants adopted. He can do that.

When the agencies publish proposed rules (other than those “relating to agency management or personnel”), comments and reply comments can and should be filed. Suit might possibly be filed seeking to have the adoption of new proposed rules delayed pending judicial review. More likely, however, their adoption cannot be prevented and suits seeking to prevent enforcement will have to wait until after the new rules have been adopted.

Of greatest importance, the present Congress should refuse to pass any long term omnibus appropriations bill. A short term omnibus bill, granting spending authority — through February or March — seems reasonable. Then, when it is clear what the various administrative agencies propose to do, the next Congress should pass separate appropriations bills for each of those agencies, specifically not funding any (specified) actions deemed undesirable. Any long term omnibus appropriations bill passed by the next Congress needs specific language prohibiting the expenditure of any funds by or on behalf of those agencies not specifically authorized in appropriations bills for those agencies. Fund shifting to those agencies from from other agencies also needs to be prohibited.

These are just my first impressions. There will likely be much more that the next Congress can and should do, but the current Congress will need to pass a short term omnibus appropriations bill as suggested above if the next Congress is to take effective action. There should be ample time between now and January to come up with more ideas.

ADDENDUM

Here’s a link to a Washington Times analysis of Obama’s two executive actions. I have yet to find the full texts.

The first executive action directs

agencies to work in consultation with stakeholders to develop recommendations on how to better improve our visa system so that it more efficiently uses government resources, prevents fraud, and reduces burdens on employers and employees,” the White House said. It requires federal agencies to submit recommendations within 120 days.

Who are the “stakeholders?”

The second executive action

creates the White House Task Force on New Americans, “which is intended to better assist new Americans to fully contribute to our economy and their communities,” the White House said.

“It will bring together various government agencies and support state and local efforts to create a strategy to enhance civic, economic, and linguistic integration of new Americans,” the statement said. “This task force will create an integration plans with recommendations on how to improve these efforts within 120 days.”

Obama’s executive actions may or may not contemplate new agency rules. Perhaps upon receipt of the recommendations Obama will issue Executive Orders. Or perhaps He will tell the relevant agencies what He wants and direct them to propose new agency rules accordingly.

If the recommendation process, apparently envisioned by the executive actions, takes the full 120 days, if Obama et al mull the recommendations over for awhile, and if the current Congress passes only a short term continuing resolution as suggested in the article, the new Congress should have ample time to prepare and pass both a continuing resolution on general appropriations as well as specific appropriations for the agencies and others slated to implement the recommendations as approved by Obama, both as suggested in the article.

FURTHER ADDENDUM

The operational portions of the executive actions mentioned above are provided below. The introductory paragraphs, similar in both memorandums, are not provided here with the exception of one, which appears in the memorandum on visas. I have included it because it seems to indicate that Obama contemplates future actions by Federal agencies.

Presidential Memorandum — Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century, November 21, 2014

Even as we continue to seek meaningful legislative reforms, my Administration has pursued administrative reforms to streamline and modernize the legal immigration system. We have worked to simplify an overly complex visa system, one that is confusing to travelers and immigrants, burdensome to businesses, and results in long wait times that negatively impact millions of families and workers. But we can and must do more to improve this system. Executive departments and agencies must continue to focus on streamlining and reforming the legal immigration system, while safeguarding the interest of American workers. [Emphasis added.]

Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to modernize and streamline the U.S. immigration system, I hereby direct as follows:

Section 1. Recommendations to Improve the Immigration System. (a) Within 120 days of the date of this memorandum, the Secretaries of State and Homeland Security (Secretaries), in consultation with the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, the Director of the Office of Science and Technology Policy, the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education, shall develop:

(i) in consultation with private and nonfederal public actors, including business people, labor leaders, universities, and other stakeholders, recommendations to streamline and improve the legal immigration system — including immigrant and non-immigrant visa processing — with a focus on reforms that reduce Government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system;

(ii) in consultation with stakeholders with relevant expertise in immigration law, recommendations to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand; and

(iii) in consultation with technology experts inside and outside the Government, recommendations for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system.

(b) In developing the recommendations as set forth in subsection (a) of this section, the Secretaries shall establish metrics for measuring progress in implementing the recommendations and in achieving service-level improvements, taking into account the Federal Government’s responsibility to protect the integrity of U.S. borders and promote economic opportunity for all workers.

Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.

********************

Presidential Memorandum — Creating Welcoming Communities and Fully Integrating Immigrants and Refugees, November 21, 2014

By the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby order as follows:

Section 1. White House Task Force on New Americans. (a) There is established a White House Task Force on New Americans (Task Force) to develop a coordinated Federal strategy to better integrate new Americans into communities and support State and local efforts to do the same. It shall be co-chaired by the Director of the Domestic Policy Council and Secretary of Homeland Security, or their designees. In addition to the Co-Chairs, the Task Force shall consist of the following members:

(i) the Secretary of State;

(ii) the Attorney General;

(iii) the Secretary of Agriculture;

(iv) the Secretary of Commerce;

(v) the Secretary of Labor;

(vi) the Secretary of Health and Human Services;

(vii) the Secretary of Housing and Urban Development;

(viii) the Secretary of Transportation;

(ix) the Secretary of Education;

(x) the Chief Executive Officer of the Corporation for National and Community Service;

(xi) the Director of the Office of Management and Budget;

(xii) the Administrator of the Small Business Administration;

(xiii) the Senior Advisor and Assistant to the President for Intergovernmental Affairs and Public Engagement;

(xiv) the Director of the National Economic Council;

(xv) the Assistant to the President for Homeland Security and Counterterrorism; and

(xvi) the Director of the Office of Science and Technology Policy.

(b) A member of the Task Force may designate a senior-level official who is from the member’s department, agency, or office, and is a full-time officer or employee of the Federal Government, to perform day-to-day Task Force functions of the member. At the direction of the Co-Chairs, the Task Force may establish subgroups consisting exclusively of Task Force members or their designees under this subsection, as appropriate.

(c) The Secretary of Homeland Security shall appoint an Executive Director who will determine the Task Force’s agenda, convene regular meetings of the Task Force, and supervise work under the direction of the Co-Chairs. The Department of Homeland Security shall provide funding and administrative support for the Task Force to the extent permitted by law and subject to the availability of appropriations. Each executive department or agency shall bear its own expenses for participating in the Task Force.

Sec. 2. Mission and Function of the Task Force. (a) The Task Force shall, consistent with applicable law, work across executive departments and agencies to:

(i) review the policies and programs of all relevant executive departments and agencies to ensure they are responsive to the needs of new Americans and the receiving communities in which they reside, and identify ways in which such programs can be used to increase meaningful engagement between new Americans and the receiving community;

(ii) identify and disseminate best practices at the State and local level;

(iii) provide technical assistance, training, or other support to existing Federal grantees to increase their coordination and capacity to improve long-term integration and foster welcoming community climates;

(iv) collect and disseminate immigrant integration data, policies, and programs that affect numerous executive departments and agencies, as well as State and local governments and nongovernmental actors;

(v) conduct outreach to representatives of nonprofit organizations, State and local government agencies, elected officials, and other interested persons that can assist with the Task Force’s development of recommendations;

(vi) work with Federal, State, and local entities to measure and strengthen equitable access to services and programs for new Americans, consistent with applicable law; and

(vii) share information with and communicate to the American public regarding the benefits that result from integrating new Americans into communities.

(b) Within 120 days of the date of this memorandum, the Task Force shall develop and submit to the President an Integration Plan with recommendations for agency actions to further the integration of new Americans. The Integration Plan shall include:

(i) an assessment by each Task Force member of the status and scope of the efforts by the member’s department, agency, or office to further the civic, economic, and linguistic integration of new Americans, including a report on the status of any offices or programs that have been created to develop, implement, or monitor targeted initiatives concerning immigrant integration; and

(ii) recommendations for issues, programs, or initiatives that should be further evaluated, studied, and implemented, as appropriate.

(c) The Task Force shall provide, within 1 year of the date of this memorandum, a status report to the President regarding the implementation of this memorandum. The Task Force shall review and update the Integration Plan periodically, as appropriate, and shall present to the President any updated recommendations or findings.

Sec. 3. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Secretary of Homeland Security is hereby authorized and directed to publish this memorandum in the Federal Register.

Neither memorandum, on its face, appears to violate either the Constitution or any Federal law. They merely direct that consultations be held, and that recommendations be made, on what should be done in relevant areas. Implementation of any recommendations may well be a different matter, depending on which Federal entity attempts to implement which recommendations.

ANOTHER ADDENDUM

An article appeared at the Washington Post today making the point that Obama intended to provoke outraged Republicans into doing unwise things that he would find useful in implementing his political agenda. Beyond stating (in my view erroneously) that Obama took an “unconstitutional executive action,” the article contends:

He is acting to provoke the GOP. The giveaway moment in Obama’s address was when he told Republicans that “Americans are tired of gridlock” and urged them not to “let a disagreement over a single issue be a deal breaker on every issue. That’s not how our democracy works, and Congress certainly shouldn’t shut down our government again just because we disagree on this.”

That is exactly what Obama is hoping Republicans will do. His whole speech was a calculated effort to elicit a self-destructive response from the GOP. Obama wants Republicans to shut down the government. He wants them to introduce articles of impeachment. He wants them to rail against illegal immigrants — to declare, as Rep. Michele Bachmann (R-Minn.) did, that his actions will result in “millions of unskilled, illiterate, foreign nationals coming into the United States who can’t speak the English language.” [Emphasis added.]

That’s music to Obama’s ears.

Obama must be drooling with delight.