The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

By Erwin Chemerinsky and Samuel Kleiner, Los Angeles Times (TNS)

There is an adage every young lawyer learns: If you have the law, pound the law; if you have the facts, pound the facts. But if you have neither, pound the table.

The heated Republican rhetoric in response to President Obama’s immigration announcement is unquestionably table-pounding. His opponents have neither the law nor the facts on their side, so they have resorted to name calling and threats. House Speaker John Boehner (R-OH) issued a news release referring to “Emperor Obama,” while Sen. Ted Cruz (R-TX) accused him of being like a monarch and of having a “temper tantrum.” Some conservative legislators have called for censuring the president, or even initiating impeachment proceedings.

As a matter of law, however, it is absolutely clear that Obama has the authority to decide not to prosecute or deport anyone he chooses. Prosecutorial discretion is an inherent part of presidential power. The Supreme Court in United States v. Nixon declared: “The Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

No one believes that the federal government has to prosecute every violation of every federal crime or to deport every person who is eligible for deportation. The federal government, for example, long has not prosecuted people caught with small amounts of marijuana even though it violates the federal controlled substance act.

Choices about whether to prosecute are based on a wide array of policy considerations, including how to best allocate scarce prosecutorial resources and whether enforcing a law produces desirable outcomes. Constitutionality is another issue that can be taken into account. It is well established that the president does not have to enforce laws that he believes to be unconstitutional; indeed, to do so would violate his oath of office to uphold the Constitution. Nor does the president have to enforce laws that he believes to be unwise.

All of this is especially clear in the area of immigration policy. The Supreme Court long has recognized that immigration and deportations are closely tied to foreign policy, which is uniquely in the domain of executive power and control. The executive discretion granted by the Constitution certainly includes deciding whether to bring deportation proceedings. Throughout history, the federal government has chosen — for humanitarian concerns or foreign policy reasons — to not try to deport some individuals or classes of individuals, even though they are not lawfully in the United States.

Republican presidents have used this discretion as much as Democratic ones. In 1987, in a decidedly political move by a president who opposed the Sandinista regime, the Reagan administration took executive action to stop deportations of 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, to advance his foreign policy, stopped deportations of Chinese students and in 1991 prevented hundreds of Kuwait citizens who were illegally in the United States from being deported. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of the Salvadoran president, ordering that deportation decisions include consideration of factors such as whether a mother was nursing a child or whether an undocumented person was a U.S. military veteran.

All of the Republican anger cannot obscure the legal reality: Obama has the authority to decide to suspend deportations. Likewise, the facts support Obama. A cruel aspect of immigration policy is that it often separates parents, who are in the United States illegally, from their children who are U.S. citizens because they were born in this country.

Nora Sandigo, in Miami, has a sticker in her car that says “Every child is a blessing.” It is a reminder for her as she drives around to pick up yet another child whose parents have been deported. Since 2009, Sandigo has taken legal guardianship of 812 U.S. citizens whose parents have been deported. “La Gran Madre” is what many call her, but she knows her limitations. “All I can do is hold back some of the bleeding. There is no way I can give 812 children the love and attention they need, but … the system is broken.”

It is estimated that there may be as many as 5 million parents in this situation. The irony is that Republican rhetoric for years has emphasized “family values,” but it is Obama who is acting in a profoundly pro-family way.
___
Erwin Chemerinsky is dean of the University of California, Irvine School of Law. Samuel Kleiner is a fellow at the Yale Law Information Society Project. They wrote this for the Los Angeles Times.

AFP Photo/Jim Watson

Want more political news and analysis? Sign up for our daily email newsletter!

Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

Attorney General Merrick Garland

The coming weeks will be the most consequential of Merrick Garland's life — not just for the attorney general himself but for our country. Garland will have to decide, presumably with the support of President Joe Biden, how to address the looming authoritarian threat of former President Donald J. Trump and his insurrectionary gang. His first fateful choice will be how to deal with Stephen K. Bannon, the fascism-friendly, criminally pardoned former Trump senior adviser who has defied a subpoena from the House Select Committee investigating the events of Jan. 6.

That panel has issued a contempt citation of Bannon, which will reach the floor for approval by the full House early next week. When that resolution passes, as it assuredly will, Speaker Nancy Pelosi will ask the U.S. Attorney for the District of Columbia to open a prosecution of Bannon, which could ultimately cost him a year behind bars and a fine of $100,000. (Trump won't be able to deliver a pardon, as he did last January to save Bannon from prison for defrauding gullible Trumpists in a "build the wall" scheme.)

Keep reading... Show less

By Lisa Richwine and Bhargav Acharya

LOS ANGELES (Reuters) - A union that represents about 60,000 behind-the-scenes workers in film and television reached a tentative deal with producers on Saturday, averting a strike that threatened to cause widespread disruption in Hollywood, negotiators said.

Keep reading... Show less
x
{{ post.roar_specific_data.api_data.analytics }}