Monday, December 1, 2014

Two wrongs don't make a right. Or, do they?

The Federal Register

Now that Thanksgiving is past and the furor in Ferguson has calmed down a bit, Americans can get back to what we do best:  argue about politics.

When last we heard, the big deal in Washington was the President’s executive actions on immigration policy.  Republicans cried fowl!  Alabama Senator Jeff Sessions said it most concisely.  “The president is endangering our entire constitutional order,” he avers.

Democrats respond by pointing out that Republican presidents have done the same thing. 

It sounds a lot like playground logic…

…. Mom, Barack broke the rules!

….  Yeah, Mom, but so did Ronnie and George.

I know what my Mom (or yours) would say:  “Two wrongs don’t make a right.”

One of the adults in Congress expressed a more balanced view.  Senator Lindsay Graham (R-SC), referring to the House of Representatives controlled by his own party, said on CNN: "Shame on us as Republicans for having a body that cannot generate a solution to an issue" involving national security as well as cultural and economic considerations.

But, were the President’s actions legal?

I would guess that what he has outlined is legal.  The President didn’t wake up the day after Election Day and decide to do this.  I would bet his legal staff burned the midnight oil for months identifying what they thought he could and couldn’t get away with.  Moreover, his apologists are right about Presidents and executive orders.  The website published a chart of executive orders going back to George Washington.  It’s an interesting graphic showing a peak in the number of executive orders during the FDR administration.

I think there’s actually a larger question: How did it get this way?  How can a President, in effect, create laws through executive action?  Isn’t that the role of Congress?  Isn’t that the Constitutional order (as Senator Sessions put it)?

First, a bit of history.  Two separate events provide the basis for an expansion of executive powers.  In 1935, the Supreme Court decided Humphrey’s executor v. United States in favor of the plaintiff.  The decision rendered a President powerless to fire a duly appointed commissioner (in this case, a commissioner of the FTC).  Unlike cabinet departments, Congress appoints commissioners to administrative bodies that are an extension of their legislative power.  The FCC and the FTC are examples. 

The addition of so many commissions, agencies and cabinet departments during the Roosevelt administration led to the passage of the Administrative Procedures Act of1946.  This law allows government bureaucrats to write procedures that turn the vague laws passed by Congress into rules and regulations.

These legal events – which most people have never heard of – have led to administrative mission creep, extraordinary complexity and lack of accountability in the federal bureaucracy. 

“So what?” you might say.  We all know how unresponsive and incompetent government bureaucracies are.  How does that relate to the current hoo-haw over immigration?

The sheer size of the federal government leads to what economists call “rational ignorance”.  The only people who read the Federal Record to see what new rules are being written are industry lobbyists and special interest groups seeking to influence the outcomes in their favor.  In these cases, they are likely to get their way since if no one else knows, no one will object.

Who knows what rules have been written to enforce immigration laws?  Immigration and Customs Enforcement (ICE) reports through the Department of Homeland Security to the President.  If DHS bureaucrats have written the rules, they can re-write the rules.

Is it any surprise that anti-government Republicans have found a following? 



  1. Some people argue that the President had to act because Congress would not pass new immigration legislation. Others argue that we don't need new laws but to simply enforce existing laws. But, few people have actually read the law to know what's in it. I doubt it specifically addresses adults who were brought here as child and don't know any other culture. So, it's up to the administration to write (or re-write) the rules that apply to each situation.
    As for out of control bureaucracy, wasn't it the Democrats that told us we should pass health care reform and read it afterward to find out what was in it? So it goes with immigration that we don't really know what the laws say, we only know what the politician say, what the talk show host say and what the media people say.
    .... and while we argue about what the law says, real people's lives are impacted.

  2. Interesting that this morning John's post should hit my mail box, because only yesterday, my son was granted his Green Card after over fifteen years since applying for it. A nightmare costing me over $60,000 in lawyers fees, and stressing out my family for all these years.

    So I actually know the immigration law extremely well, as I am an immigrant who has passed through the nonsense and eventually become a US Citizen, a privilege that allows me to criticise the system.

    Here's the best example of immigration procedure stupidity for you.

    There are six 'preferences' that people can apply for a Green Card. 1st Preference is a child of a US Citizen. 2nd Preference is a spouse of a US Citizen. 3rd Preference is a professional - doctor, scientist etc. 4th and 5th I can't remember, and trailing far behind is 6th Preference for everyone else, they being the great majority.

    To apply for 6th Preference, one has to have a sponsor who has a job for the applicant. The job must be advertised in a local paper, and interviews conducted. There must be no Americans who are qualified for the position, or who actually want the low paying job.

    Once past this 'hurdle' the applicant is approved for a Green Card and is then placed on the waiting list, depending on the country of origin, the wait can be as little as three years, but likely five, as quota are allocated every year to each nation of origin. (Disease ridden third world countries getting higher quotas.)

    Now, I ask you, what employer is going to keep a low paid job on hold for 5 years? Not many!

    The medical exam. A doctor looks down your throat and listens to your chest and looks at an X-ray, then holds his hand out for $50, process takes about two minutes! We are all so much safer for this procedure.

    I could go on for hours, but I can hear you snoring already.

    Republicans and Democrats have both to take responsibility for this nightmare. They are both guilty as hell of causing untold family strife, wasting billions of taxpayer dollars, and not serving the nation well over this issue.

    I doubt it will change in the future because no one will take the lead over this issue. They need to walk in my shoes, try applying for a Green Card and see how far they get!

  3. Karen VanAssche
    Customer and Inventory Database Administrator at Detroit Public Library
    Top Contributor

    Actually, John, in the history of this country, as is pointed out in your lovely little chart, several presidents have done exactly the same thing. You could say that it's about how much power they want to grab, but in reality, if you read in-depth histories you would probably decide that there was some issue that needed to be dealt with and was not being handled by Congress. Some things become urgent and need to be resolved. Also, these situations are often created by opposing party members who stall resolution of the issue, hoping to let the sitting president look like he couldn't accomplish anything. Then they can use that as a campaign slogan and resolve the issue when, and if, they win the seat.

    I love history, but hate politics. It really screws us all for no good reason, other than someone's need for more power.

    In many, if not most or all, cases where sitting presidents exercised this power, the result proved to work in the favor of the people. I can't itemize now, because I don't have all the research in front of me. Seriously, though, someone has to get off their duff and do something. At least the Prez did something.

    1. Jason G. Ramage, MS, MBA, PMP, RBP
      Deputy Program Manager at BAI Inc - Meeting Client Challenges with Vision and Innovation
      Top Contributor

      "Doing something" isn't necessarily a good thing. I'm not so sure immigration reform or action was needed; rather this was a clamor for legalization of millions of people who came here illegally from Mexico and elsewhere in Latin America. Did other Presidents do similar things? Yes. Does that mean we have to keep repeating the same mistakes? Absolutely not.

      Actually, I'll amend my statement. The process should be made easier but only for those who are willing to abide by the laws of the land and come through legal channels. And we should make it easier for those who come to get educated in our colleges and universities to stay on and put their skills and knowledge to work here. What we don't need are millions more unskilled laborers further depressing wages and straining social services, especially when for whatever reason state and local governments feel compelled to provide those services in Spanish at increased costs to taxpayers.

    2. Karen VanAssche
      Customer and Inventory Database Administrator at Detroit Public Library
      Top Contributor

      Jason, I actually believe what it says on the Statue of Liberty. I understand logically (if one can say it's logical) both sides of the arguments. However, I don't necessarily agree with the way immigration handles groups of aliens or specific nationalities. Why not let the Mexicans in if we're allowing in the Chinese or the Indians?

      Is it really any better to let stay those who come here for education? They are also taking jobs away from Americans who went through the same programs - or worse were not accepted into the program because that slot was given to a foreign student.

      As for Spanish on documents, we should all learn more than one language, but here all documents are in English and Arabic.

    3. Jason G. Ramage, MS, MBA, PMP, RBP
      Deputy Program Manager at BAI Inc - Meeting Client Challenges with Vision and Innovation
      Top Contributor

      Karen - the inscription on the Statue of Liberty was the sentiment expressed by the French; it is NOT Constitutional law.

      As for competition with Americans, studies show large achievement gaps between American students and foreign-born students. So if Americans want to keep up and compete, they'll have to study harder. Too many companies are complaining that our colleges and universities are producing graduates who lack the fundamental skills and knowledge to succeed in the workplace.

      As for multiple languages, I agree it's a valuable skill, but that has no bearing on my complaint. The language of the US, while not official, is English. People should be required to learn it; it is not incumbent upon us to make sure everything is available in their language. We wouldn't go to France or Japan and expect to be accommodated in that matter.

  4. Well, I guess I should wade in here.

    I agree and disagree with both of you.

    From an economic perspective, GDP growth relies on increasing the population. With low birth rates in this and other industrialized countries, immigration is the only way to do that. In ten years, we will be competing for immigrants.

    Mexican and South American immigrants who are uneducated and low skill (like my grandparents were when they came here in the 20's) raise children as Americans who become well educated and prosperous. I lived in S. Florida for 18 years and saw the benefits of legal Cuban immigration. They came, the saw, they prospered.

    The Mexican border has never been secured in the way that many conservatives preach it should be. It's geography doesn't lend itself to being secure. In addition, when the border was created, the SW US was largely populated by Mexicans. My further thoughts here:

    As for executive actions, my reading of history tells me that it's all been part of the tug of war that has been ongoing since our founding. Presidents seek to aggregate power and Congress seeks to limit it. The last time it was truly reined in was following the Nixon abuses. The War Powers Act is an example of those reforms.

    That said, my post was about the degree to which the increasing size of the federal bureaucracy has led us to a point where the intent of the Congress (and to some extent the President) is undermined by a bureaucracy that pursues its own ends with little oversight.

    As for the President's actions, I support the direction but decry the means. I do not adhere to the excuse that he can't get anything done because of an obstructionist Congress. His two immediate predecessors managed to get their agenda through Congresses of the opposing party. They did so by taking their case to the public, making backroom deals and arm twisting. It wasn't always pretty but they got their stuff -- love it or hate it -- through Congress.

  5. Karen VanAssche
    Customer and Inventory Database Administrator at Detroit Public Library
    Top Contributor

    John, it's quite possible that I didn't pay close enough attention to the arm twisting, etc. of his two predecessors, but in my whole life I've never seen a full time battle like the one during this administration - and that includes Johnson during the war and even Clinton during his hearings.

    Other than that, well said.

  6. Jason G. Ramage, MS, MBA, PMP, RBP
    Deputy Program Manager at BAI Inc - Meeting Client Challenges with Vision and Innovation
    Top Contributor

    John, even on those very rare occasions when I find I'm not in 100% agreement with you, I can always count on an articulate, dispassionate and thoughtful discussion with you. Well done!

  7. Sid Gudes
    Founder and V.P. at New Mexico Water Billing

    Sorry, John, Presidents cannot make law. That is the sole province of Congress.

    Legislature: makes laws. Executive: enforces laws. Judiciary: interprets laws.

    The purpose of an executive order is to issue guidelines to the Executive branch as to how laws (which have been made by Congress) are to be interpreted and applied. They may be powerful, but they are one step down from an actual law (top level: Constitution, next level down: laws made by Congress, next level down: executive orders -or- laws made by states, which can be messy if they conflict).

    The President may issue an executive order to enforce laws that are on the books. Since some laws (and some parts of the Constitution) are ambiguous, the President has some leeway in writing orders.

    The legislature can disagree with an executive order, in which case they can issue a clarifying new law. Or the Executive branch can be sued, in which case a judge (or panel of judges) will decide whether the executive order actually executes the law as written and intended.

    BTW, I loved the line in your blog "Republicans cried fowl!". It brought up an image of Congress as a bunch of clucking hens running around yelling that the sky is falling. Oh wait, that's the way it really is... :-)

  8. "Fowl" or "Foul" ? Pun intended? Either way, great statement!