"Year of Action" – Obama's 'Success' – Regulate More

Editor’s Note – Recently we saw yet another email from the fund raising arm of the DNC touting the Presidents ‘year of action’ and that they need yet more money to help him have another success in 2015.

Looking at his previous six years of action, the country really cannot afford any more ‘action’ by this President, especially with his “uni-pen,” the “pen of unilateral action.”

Give Barack Obama credit for keeping his promise. “This is going to be a year of action,” the president pledged last January. And indeed, with a series of unilateral executive actions in the last few months of the year, he made it so.

Obama’s original promise was entirely understandable. He entered 2013 fresh from a solid re-election victory, determined to score legislative wins on gun control, immigration, spending, and other knotty issues. It all ended in disappointment. As 2014 dawned, Obama promised — to Republicans, threatened — to take a new path. (Read more here.)

In just 2014 alone, as their advertisement proclaims, Obama apparently did achieve great ends, if you ‘drink Kool-Aid’:Dec2014ObamaAdEmail.4

  1. He announced historic action on climate change;
  2. He raised the minimum wage on federal contractors;
  3. He established new rules to ensure equal pay for women;
  4. …and lastly, he took ‘executive action’ on immigration reform.

What they left out of the list of unilateral, unconstitutional acts was a disastrous streak of foreign policy failures and other dubious events like (H/T to the National Journal):

  1. Islamic State: “The analogy we use around here sometimes, and I think is accurate, is if a JV team puts on Lakers uniforms, that doesn’t make them Kobe Bryant;”
  2. “The “Taliban Five” – Obama staged a celebratory event in the Rose Garden in May with the parents of freed Army Sgt. Bowe Bergdahl,” only to see an unexpected negative reaction from all corners, including Democrats;
  3. NSA – “Remember that big speech Obama gave in January about reforming the National Security Agency’s surveillance practices” – only to reauthorize the very same;
  4. “Every warm weekend seemingly saw Obama hitting the links, even as the world, at times, felt like it was wobbling a bit between Iraq, Ukraine, the protests in Ferguson, Mo., the spread of Ebola, and other crises.” Worst of all was giving a speech when an American journalist was beheaded in in Syira and then five minutes later he was on the links.
  5. The border – “…the president being photographed playing pool and drinking beer in Colorado just as waves and waves of refugee children from Central America were spilling across the southwestern border:”
  6. CIA Report – Senate Democrats released a report earlier this month concluding that the Central Intelligence Agency had engaged in repeated episodes of torture and had misrepresented its effectiveness, the president pointedly refused to endorse it, or address it publicly in any way. Only Diane Feinstein looks worse here.
  7. The Patient Protection and Affordable Care Act continued to be ‘none-of-the-above’ and a political anchor, reaching new depths of unpopularity, and now you have bigger fines to look forward to in 2015;
  8. Ukraine and Crimea – need we say more about Putin’s laughter at Obama’s expense?
  9. Ebola – could that have been handled any worse when it came to quelling fear and panic – that’s leadership. By the way, where was that Czar, Ron Klain?
  10. Israel and Gaza – John Kerry’s epic ‘fail‘ reached stratospheric proportions;
  11. Supreme Court – Just how many cases will Obama lose concerning his unilateral actions and the fraud that was ObamaCare and its principal architect, Jonathan Gruber, the man they called  ‘Mr. Mandate’ who “sees stupid people;”
  12. The Economy – that ever so slogging ‘success‘ that no one in the real-world seems to feel as good about as Obama unless you are into the NYSE and its rarefied air;
  13. Iran – What can we say about Iran, other than being played for a complete fool? But maybe a new embassy in Tehran will soothe the savage beasts and the Mullahs blind ambitions;
  14. Cuba – Ditto on Iran, and then there is that whole Sony/North Korea thing still unsettled;
  15. Scandals – too numerous to list, and each is still unresolved, from the IRS to Benghazi – maybe 2015 ‘action’ will clear the air?

Of course this list just hits some of the “high” points of the past year but look what else he did this year – 75,000 pages of new regulations, feeling good about making that donation now?

How much “action” from Obama can this country withstand for two more years?

Obama Imposed 75,000 Pages of New Regulations in 2014

Written by Alex Newman – The New American

Just in the last few weeks, the Obama administration has proposed or imposed over 1,200 new regulations on the American people that will add even more to the already crushing $2 trillion per year cost burden of the federal regulatory machine. According to data compiled from the federal government’s Regulations.gov website by the Daily Caller, most of the new regulatory schemes involve energy and the environment — 139 during a mere two-week period in December, to be precise. In all, the Obama administration foisted more than 75,000 pages of regulations on the United States in 2014, costing over $200 billion, on the low end, if new proposed rules are taken into account.

Just one of those “rules” by the out-of-control Environmental Protection Agency (EPA), the so-called “coal ash” regulation, is expected to cost as much as $20 billion, estimates suggest. Another oncoming rule, which experts and analysts say is likely to be the most expensive federal regulation in all of U.S. history, could wreak havoc across the nation and crush the economy to the point that economic growth halts completely, experts said. Even Christmas lights, though, are now in the administration’s regulatory crosshairs, along with virtually everything else.

YearofAction2014While the insatiable Obama White House “pen and phone” machine has been spewing costly and draconian regulatory edicts at a fast and furious pace since taking power six years ago, it seems that the Holiday season has featured an even larger than usual number of wild decrees. Late last month, for example, as Americans were occupied with Thanksgiving, the Obama administration emitted what has been widely decried as the most costly single regulation in American history.

The so-called “ozone rule,” which estimates suggest could cost as much as $270 billion per year and put millions of American jobs at risk under the guise of further regulating emissions of the natural gas, was formally put forward the day before Thanksgiving. Lawmakers decried the timing of the massive regulation, suggesting the scheme was released during the holidays so “stupid voters” — as ObamaCare’s architect infamously described the American people — would be distracted with other matters.

Experts also pointed out that the EPA’s own 2007 studies showed no adverse health effects from exposure to even high levels of ozone. Even people suffering from asthma experienced no adverse effects from high levels of ozone, the EPA itself found. More than a few experts have disputed the notion that ozone causes any harm at all — but that has not stopped the EPA from imposing the regulation under the guise of “protecting health.”

“Bringing ozone pollution standards in line with the latest science will clean up our air, improve access to crucial air quality information, and protect those most at-risk,” claimed scandal-plagued EPA boss Gina McCarthy in a statement celebrating the latest proposed decree. “It empowers the American people with updated air quality information to protect our loved ones — because whether we work or play outdoors — we deserve to know the air we breathe is safe.”

Air concentration of ozone gas, which largely occurs naturally, has been plummeting across the United States in recent decades even without the EPA’s “most expensive” regulation in history. According to the American Action Forum, which analyzes the impact of regulations, the ozone standards are so extreme that 100 state and national parks could be in danger of violating them — despite the fact that they have virtually no traffic or manufacturing bases. Ironically, the EPA claims an array of other recent EPA regulations could “help” states satisfy the new federal ozone decrees.BreakThroughYear2014

American industries, meanwhile, warned that the consequences of the “ozone” regulation on the fragile U.S. economy could be devastating. “This new ozone regulation threatens to be the most expensive ever imposed on industry in America and could jeopardize recent progress in manufacturing by placing massive new costs on manufacturers and closing off counties and states to new business by blocking projects at the permitting stage,” explained Jay Timmons, president of the National Association of Manufacturers.

In an analysis posted on the NAM website, the association included a map showing that, depending on how extreme the final ozone standard was, virtually all of the United States could be out of compliance with the EPA mandates. “With nearly all of the country in nonattainment, U.S. manufacturing growth would come to a standstill; our domestic energy boom could go bust; and existing plants would be required to install additional expensive equipment,” the organization said, citing EPA data.

According to a study released by NAM earlier this year, federal regulations imposed on the United States were costing the American people more than $2 trillion every year by 2012, the most recent year for which data is available. And the cost is growing quickly. In 2014 alone thus far, the Obama administration has imposed regulations that will cost the American people over $200 billion in addition to the pre-existing $2 trillion burden, according to low-end estimates by the American Action Forum. That does not include the cost of numerous “executive” decrees and assumes, contrary to findings presented in the NAM-commissioned study, that the cost of the “ozone” rule will be relatively small.

HR-Jan29-Action-Figure_600Another major regulation imposed by the Obama administration in recent weeks surrounds the so-called “coal ash” rule regulating waste produced by electricity generation. The new scheme, finalized shortly before Christmas, could cost over $20 billion. Senator James Inhofe (R-Okla.), presumably the next chairman of the Senate Environment Committee, blasted the plot as “a continuation of the president’s war on fossil fuels.” Among other concerns, he said the new regulations would “make states and utility companies vulnerable to new regulatory costs and expensive litigation.”

Other costly regulations in the pipeline include the Obama EPA’s radical bid to severely curtail emissions of CO2. The natural gas, which makes up a fraction of one percent of all the “greenhouse” gases present naturally in the atmosphere, is exhaled by humans and is described by scientists as the “gas of life.” Still, the White House and the United Nations continue their outlandish campaign to demonize the essential molecule as “pollution,” even threating to shackle humanity to a draconian global CO2 regime under the guise of stopping “global warming.”

Next year, meanwhile, the Obama administration is plotting to unleash yet another deluge of federal regulations targeting everything from fracking to power plants. State governments, lawmakers, and citizens have been fighting back, but so far, the White House shows no signs of backing off or even slowing down the pace when it comes to devastating decrees to pummel the economy and the American taxpayer. More “climate” decrees are coming, too, with the White House even threatening to impose a UN carbon regime on America without obtaining Senate ratification.

Separately, as The New American reported this month, the Obama administration’s increasingly dangerous and anti-constitutional usurpations of power have been accelerating. Despite White House attempts to dupe the American people by claiming it has imposed fewer “executive orders” than previous presidents, the administration was recently exposed by USA Today concealing most of its unilateral decrees by calling them “presidential memoranda” instead of orders. Obama has issued more than any president in history, doing everything from purporting to change federal law to even attacking the American people’s God-given rights using illegitimate executive edicts.

With the sprawling regulatory leviathan growing perpetually more costly and oppressive, critics say the American people’s elected representatives and the courts must both take action. “Congress should examine how executive agencies are exceeding key authorities granted to them and both narrow the substantive grants that are most subject to abuse and improve administrative procedures on multi-billion dollar regulations,” wrote attorneys Todd Gaziano and Mark Miller with the pro-liberty Pacific Legal Foundation in a recent Forbes column about the need to regulate what constitutes a regulation. “Until then, the courts must police these two areas, particularly in the rulemaking context.”

While Republican lawmakers have become adept at loudly complaining about the administration’s non-stop executive power grabs and regulations on the campaign trail, so far, they have done virtually nothing to stop it. In fact, despite all of the promises to rein in the Obama administration’s “imperial” presidency if elected to Congress, victorious Republicans, who already dominated the House of Representatives, recently passed a massive spending bill fully funding virtually every decree the White House has spewed since coming to power through next September.

In other words, GOP lawmakers, sent to Washington by outraged voters in November to stop Obama, gave up their most powerful tool to restrain the administration for almost a full year — before the new members could be seated, and for no good reason. The solution to the growing regulatory lawlessness, though, remains simple: Congress can and should defund the decrees and the unconstitutional agencies behind them before Obama’s “fundamental transformation” of America is complete.


 

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Alex Newman is a correspondent for The New American, covering economics, education, politics, and more. Follow him on Twitter @ALEXNEWMAN_JOU. He can be reached at: anewman@thenewamerican.com

NPR Interview – Obama Talks About Iran, Embassy?

Editor’s Note – In an interview with NPR, one delayed for over 11 days, Obama reveals his true intent once again toward despots, strongmen, and tyrants.  Obama shocked the world many times with his appeasement mentality, but just recently Cuba was perhaps the biggest – now Iran?

He talks about Iran with ‘ifs’ and ‘buts’ but he also extols their virtues. He raises several in his opinion by saying:

 ‘…there’s incredible talent and resources and sophistication inside of Iran, and it would be a very successful regional power that was also abiding by international norms and international rules, and that would be good for everybody.’ (Emphasis added)

Obama in the NPR interview.
Obama in the NPR interview.

Of course he hinges everything on how Iran acts toward international norms on nuclear energy use, but that in and of itself is incredibly naive or is part of his grander scheme – let Iran become a nuclear power.

His legacy would certainly be etched deeply if he were to unilaterally open an embassy again in Tehran just like he intends for Cuba, but we have news for him – that is not in the ‘best interests’ of America as he quotes himself.

It’s not a good legacy and it insults all previous actions taken by our bravest in the past over the entire region. What about our allies in the region?

‘And what I said then remains true: If I thought it advances American interests, yes. I believe in diplomacy, I believe in dialogue, I believe in engagement.’

Does Obama ever listen to the actual words spoken by the Mullahs in Tehran? “Successful regional power?” What does that mean? Apparently he thinks they will play nice with their neighbors in the Sunni world and/or Israel, really? Iran does not intend on being a regional power; it never has – it’s goal is far greater and Israel would cease to exist in that scenario.

He also believes that he has isolated Iran more than ever – really? Iran is openly working with Iraq against IS and is certainly in the good graces of Russia, China, and the Assad Regime in Syria – isolation? Talking to liars and expecting positive results is surely the work of the naive – a naivete nurtured for over six years.

Then there is the matter of calling Tehran a country, not Iran’s capital city. Read on and judge for yourself, and then ask why the interview was delayed:

Olive branch to the mullahs:

Obama won’t rule out embassy in TEHRAN but says the Iranian capital is a country – not a city

  • Interview was conducted in the Oval Office the day after Obama said he would normalize relations with Cuba – but held back for 11 days
  • Embassy in Tehran would be the first since 1979 hostage crisis, which Iranians still celebrate as the ‘Conquest of the American Spy Den’
  • Obama said if Iran proves it’s not seeking nuclear weapons, it would become a ‘very successful regional power’
  • Claimed credit for isolating Tehran through economic sanctions

By David Martosko, Us Political Editor For Dailymail.com – Daily Mail

President Barack Obama said Monday that Iran might join Cuba as a second rogue state to enjoy normalized diplomatic relations with the United States under his administration.

In a 40-minute interview with National Public Radio conducted on December 18 – but held back for 11 days – the radio network’s senior morning host quizzed Obama in the Oval Office about a wide range of policy positions, including his plans for the Middle East.

‘Is there any scenario under which you can envision, in your final two years, opening a U.S. embassy in Tehran?’ asked NPR’s Steve Inskeep. ‘I never say never,’ Obama replied, while allowing that ‘I think these things have to go in steps.’

Mullahs
The winners as usual – the Mullahs

The unprecedented olive branch pointed in the direction of Iran’s mullahs will stoke controversy among older Americans who recall the 1979 hostage crisis in the last embassy Washington maintained there. Fifty-two Americans, mostly diplomatic personnel, were taken hostage in November of that year and held for 444 days but a group of student revolutionaries.

In Iran the event is still celebrated as the ‘Conquest of the American Spy Den.’ Few observers believe Iran is interested in proving its stated intentions to abandon its nuclear-weapons ambitions by the time Obama leaves office in January 2017.

But the president believes there’s a chance. ‘We have to get this nuclear issue resolved – and there’s a chance to do it,’ he said, ‘and the question’s going to be whether or not Iran is willing to seize it.’

If the country’s anti-America hardliners yield to more moderate voices, he predicted, ‘there’s incredible talent and resources and sophistication inside of Iran, and it would be a very successful regional power that was also abiding by international norms and international rules, and that would be good for everybody.’

‘That would be good for the United States, that would be good for the region, and most of all, it would be good for the Iranian people.’  Obama shocked the world – and angered America’s Cuban emigres – with a December 17 announcement that he would re-establish formal ties with the Raul Castro regime in Havana.

But speaking to NPR eleven days ago, he painted Iran differently – noting that a more recent history of aggression makes U.S.-Iran relations ‘different from the history between us and Cuba.’ ‘And the strategic importance of Tehran is – or Iran – is different from what we face with Cuba.’

The Islamic republic, he reminded Inskeep, ‘has a track record of state-sponsored terrorism, that we know was attempting to develop a nuclear weapon.’ But in the same breath Obama said ‘Tehran is a large, sophisticated country.’

Tehran is Iran’s capital city.

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That lapse aside, Obama emphasized Monday a theme that he has grappled with since the heady days of his first presidential campaign: the prospect of changing the global diplomatic map by bringing unfriendly nations under America’s wing.

‘I was asked very early in my presidential race back in 2007 – would I meet with these various rogue regimes?’ he recalled.obamarouhani_s640x427

‘And what I said then remains true: If I thought it advances American interests, yes. I believe in diplomacy, I believe in dialogue, I believe in engagement.’ He also claimed credit for what he characterized as a realignment of global attitudes toward Iran:

‘When I came into office, the world was divided and Iran was in the driver’s seat,’ Obama said.  But through economic sanctions, ‘now the world’s united because of the actions we’ve taken, and Iran’s the one that’s isolated.’

‘I mean, there’s a reason why we’ve been able to get this far in the negotiations,’ he said: ‘We mobilized the international community at the start of my presidency – a classic example of American leadership.’

But Iran’s supreme religious authorities, who run the country despite the fig leaf of a constitutional government, has ‘a path to break through that isolation,’ Obama declared. ‘And they should seize it.’

Obama drew criticism in 2008 for subtly changing his positiion on negotiating with antagonistic countries. Speaking to an audience of Jewish advocates in June of that year, he insisted that he had ‘no interest in sitting down with our adversaries just for the sake of talking.’

‘But as president of the United States, I would be willing to lead tough and principled diplomacy with the appropriate Iranian leaders at a time and place of my choosing if and only if it can advance the interest of the United States.’

But during a debate eight months earlier he was asked whether he would be willing to meet Iran’s leaders ‘without precondition,’ during the first year of his administration.

‘I would,’ then-Senator Obama replied. ‘And the reason is this: the notion that somehow not talking to countries is punishment to them – which has been the guiding diplomatic principle of this [George W. Bush] administration – is ridiculous.’

McCarthy – "Knives Come Out for Senators Cruz and Lee"

The Knives Come Out for Senators Cruz and Lee

Republican leaders don’t want them to derail Obama’s amnesty.

By Andrew C. McCarthy – NATIONAL REVIEW ONLINE

'Fourth Quarters,' Sony, and 'I'm Not Done' – Hawaii

Editor’s Note – As Obama conducted his end of the year press conferences, several catch phrases emerged and each tell us a great deal about what he is thinking as he goes on vacation to Hawaii.

Not in any particular order, the first is ‘I’m not done,’ and then there is the ‘fourth quarter,’ and  concerning Sony, they ‘made a mistake.’

Each of those quoted phrases again demonstrate his narcissistic approach to everything – it is all about him. Now that he has to govern without useful dupes in the Senate that allowed him to always have a shield and a foil, he is doubling down none-the-less.

Unilateral action with the Cuban Regime epitomizes his executive action and totally ignoring Congress and he plans to do the same in all other areas moving into his last two years.

No matter if you are on the side of bipartisan objection to the move or bipartisan support for it, it was a unilateral, in your face move. SharptonSony640

When talks about the ‘fourth quarter’ of his Presidency where “interesting things happen’ and interacting with  the new Congress in 2015. That sounded a lot like watch me – dude.

The Hill mentions the following:

Obama also seemed hopeful that he could reset his oft-strained relationship with lawmakers in the coming year despite the Republican takeover of Congress.

“I’m being absolutely sincere when I say I want to work with this new Congress to get things done, to make those investments, to make sure the government’s working better and smarter,” Obama said. “We’re gonna disagree on some things, but there are gonna be areas of agreement, and we’ve gotta be able to make that happen.”

Although many believe he will work with Congress, especially since he got his funding in the lame-duck session, we believe he will be just as stubborn and will only offer platitudes and he will go it alone.

Whether you call them Executive Orders, or Executive Memorandums, or proclamations, or any other euphemism, he will fire that ‘pen’ up often and we see Guantanamo in his gaze.

KimJongUnMovieWhat is perhaps most troubling though was his statement that Sony ‘made a mistake’ regarding pulling  “The Interview” from  theaters, and we must couple that with his ‘race-advisor’ Al Sharpton putting pressure on Sony executives.

Sony of course fired back as we see below that they did contact the White House, but Obama seemed to just wave his hand to tell the world he would deal with North Korea at “a time and place of our choosing.”

What is also puzzling is how he did not back the very people who backed him, Hollywood. His Laissez-faire attitude just showed the world that we can be bullied.

By not supporting and proactively protecting a company based in Japan, a staunch ally, he made Sony, a major employer and economic engine in America, act as their own protectors.

It is not Sony’s responsibility to protect American business and the first amendment, it is his.

We think that despite the FBI finding that the DPRK was responsible and may have been helped by others, it was a nation-state that is responsible for an act of terror on the United States.

Sony was in fear, theater owners were in fear and he did nothing despite the action being the definition of terror. (Read the FBI update here.)

Then there was the disingenuous “James Flacco” moment. We shall see if he does strike back, but the minimum should at least be re-designating the DPRK as a state sponsor of terror.

We do not believe he will do this, and we may never know what he chooses to do, but it is clear that immediate and over-whelming retaliation, not just some “proportionate response” will not be forthcoming – that would not fit his capitulations, bowing, and blame America attitude of appeasement, just ask the Castro brothers.

The correct message, despite North Korea’s claims of innocence and offering to aid in determining who did it, would be to send a resounding message, one where anyone else with similar designs would fear the wrath of all hell coming from the US. Why not cripple their entire communications system, or send a “Stuxnet” message.

Obama2014XmasInterviewHawaii

He spoke the words, but what will he back them up with stern action, please read on and view the video:

Monday Morning POTUS: Obama Blames Sony After Failing to Defend Free Speech When it Mattered

BY:

During his final press conference of 2014, President Obama said that Sony Pictures had “made a mistake” by pulling The Interview from theaters after threats from a group of now-confirmed North Korean hackers.

Obama first addressed the issue of cyber terrorism during an ABC interview, after Sony had already announced it was pulling the movie from theaters.

On Friday, however, Obama stood up for the First Amendment, saying we cannot have a society in which “some dictator someplace” can impose censorship on U.S. companies.

“If somebody is able to intimidate folks out of releasing a satirical movie, imagine what they start doing when they see a documentary that they don’t like, or news reports that they don’t like,” Obama said.

“Even worse, imagine if producers and distributors and others start engaging in self-censorship because they don’t want to offend the sensibilities of somebody whose sensibilities probably need to be offended.

“That’s not who we are, that’s not what America is about.”

Watch the segment here:

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Obama Immigration Action Ruled Unconstitutional By Court

Editor’s Note – Ruling that Obama’s decree was “beyond prosecutorial discretion,” we now have a court agreeing with what we all knew – Obama overstepped his authority.

Alas, we are so used to his misdeeds (being nice) it should be cheers, but until he is stopped we await the next shoe to drop from the administration.

Likely that next shoe or act will be a “yawn” from the administration and they will just ignore it.

District court declares Obama immigration action unconstitutional

 – Washington Post (Updated)

Earlier Tuesday, a federal court in Pennsylvania declared aspects of President Obama’s executive actions on immigration policy unconstitutional.
According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals.

As a consequence,  Schwab concluded, the action exceeds the scope of executive authority.article-2235597-161FF30A000005DC-443_634x446

This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States. [I’ve now posted the opinion here.]

The procedural background of the case is somewhat unusual.  The case involves an individual who was deported and then reentered the country unlawfully.

In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation.

In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence.

This isn’t the only case challenging the lawfulness of the Obama’s immigration actions.   Some two-dozen states have filed suit challenging Obama’s recent immigration policy reforms.  Led by Texas, these states claim that the president as exceeded the scope of executive authority in this area.

court-generic-2As I’ve noted before, I’m skeptical of these arguments on the merits (as is Ilya), and wonder whether the states will be able to satisfy the requirements of Article III standing to bring their claims.  Yet as this case shows, even if the states don’t have standing, the legality of the president’s actions could nonetheless be decided in federal court.

UPDATE: Here are some additional thoughts on the ruling.

It is quite unusual for a district court to reach this sort of constitutional issue in this sort of case.  Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President’s actions.  Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order.

That is, the issue was not initially raised by the defendant in his own defense.  As a result of the court’s decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy.

On the merits, I understand the concerns that motivate Judge Schwab’s reasoning, but I am not persuaded.  First, it is important to note that the executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades.  Work permits have been issued in conjunction with deferred action for at least forty years.  President Obama’s actions are broader in scope, but not clearly different in kind from what his predecessors have done and to which Congress has acquiesced.

It is true, as Judge Schwab notes, that the President’s announced policy identifies broad criteria for deferring removal of individuals unlawfully in the country.  This would appear to make the action somewhat legislative, but I don’t think it’s enough to make the action unlawful.  The new policy does not preclude the executive branch from revoking deferred action in individual cases and does not create any enforceable rights against future executive action.ObamaImperial

It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution.

President Obama’s action may be broader than many are comfortable with, and it is understandably hard to stomach given all the President’s prior statements disclaiming authority to take these steps — but such concerns are rooted in customary political norms, not judicially enforceable constitutional rules.

ADDITIONAL UPDATE: As I think about Judge Schwab’s opinion a bit more, it seems to me to be an advisory opinion. Neither party to the proceeding raised the issue and, as far as I can tell, neither party sought to have the President’s actions declared unlawful.  So there was no case or controversy presenting this question.

This could explain the anomalous nature of Judge Schwavb’s disposition of the case: After declaring the President’s actions to be unlawful, he nonetheless issued an order giving the defendant an opportunity to seek to claim the benefit of the new policy (assuming the defendant could demonstrate that he qualifies).  In other words, while Judge Schwab declared the President’s actions to be unlawful, he did not set it aside.

Indeed, given that no party was challenging the lawfulness of the President’s action, it’s not clear what authority the court would have had to invalidate the policy.

Even had the court had jurisdiction over this issue, it’s still not clear what sort of relief would be appropriate.  Could the court set aside the new executive branch policy?  If so, what precisely would that mean?  Unless a court is willing to invalidate all deferred action, and order the deportation of all those unlawfully in the country, it’s not clear what it would mean to set aside the President’s directive.

The executive branch would still be able to consider deferred action and provide work permits on a case-by-case basis — and this would leave the executive branch with the authority to prioritize “families over felons” and otherwise effectuate the policy preferences embodied in the President’s actions.

This underscores the point that if Congress is unhappy with the degree of discretion the executive branch enjoys over immigration policy, Congress needs to revise existing immigration laws so as to constrain executive authority.