Politics and Righteous Fury

Any person attempting to mobilize a group to achieve a collective goal soon finds a simple logic at work: People can be hard to motivate, especially where the individual costs are certain and the benefits are remote and speculative. How can a politician help to overcome this logic? A healthy dose of righteous zeal goes a long way. This, of course, is easier to cultivate where the problem is dire but simple, and the cause is clearly traceable to a recognizable enemy.

Bloomberg View columnist Megan McArdle gets this. In a recent article she responds to Warren Buffet’s claim that Senator Elizabeth Warren’s anger makes her less effective. McArdle disagrees:

Warren has a pretty clear agenda for American society, and she thinks that the best way to get that agenda enacted is to stir anger in the hearts of voters who see a lot of things gone wrong and figure that, well, someone must have done it to them, probably those folks over there who don’t seem to be suffering as much as the rest of us. I think her agenda is oversimplified paternalism combined with a touching naivete about the effects of regulation, but on tactics, I think she’s probably mostly right….

We want simple narratives, ones with clear villains and heroes and an obvious moral. We want clear solutions that can be described in no more than one minute, just right for a sound bite on the evening news. We want someone to hate, along with the reassurance that once those people are removed or controlled, all will be right with the world. And we happily pull the lever in the ballot box for the people who will deliver these things….

Which is not to say that Warren’s anger is strategic; I think she sincerely believes that she’s fighting some fearsome dragons. I think politics selects for people who see the world in black and white, then rage at all the darkness. I wish that weren’t the case, of course. But if you want to change it, don’t look to the politicians — look to the voters who elect them.

The article is short and worth reading in its entirety here. See also my discussion of one scholar’s seminal work on the nature and origins of mass opinion.

 

A.K.

Immigration Battle and the Proper Role of Administrative Agencies

I’ve written before about the debate over the constitutionality of President Obama’s deferred deportation program. Here is a neat little video explaining that program:

On Monday of last week, U.S. District Judge Andrew S. Hanen (TX, 5th Circuit) granted an injunction against the Obama administration’s program while a lawsuit filed by 26 states challenging it was being decided. Judge Hanen did two things in his opinion worthy of note. First, he declared that, although agency inaction is generally a matter in which courts are to defer to agency discretion, DHS’s affirmative directive not to enforce a legal provision is distinguishable from mere inaction:

While the Court recognizes… that the DHS possesses considerable discretion in carrying out its duties under the INA, the facts of this case do not implicate the concerns considered by Heckler such that this Court finds itself without the ability to review Defendants’ actions. First, the Court finds an important distinction in two terms that are commonly used interchangeably when discussing Heckler’s presumption of unreviewability: “non-enforcement” and “inaction.” While agency “non-enforcement” might imply “inaction” in most circumstances, the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as “non-enforcement,” it is actually affirmative action rather than inaction.

The Supreme Court’s concern that courts lack meaningful focus for judicial review when presented with agency inaction (see Heckler, 470 U.S. at 832) is thus not present in this situation. Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. Absent DAPA, these individuals would not receive these benefits. The DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for “administrative convenience.” Had the States complained only of the DHS’ mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any “focus for judicial review.” See Heckler, 470 U.S. at 832.

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that—not enforcing the law. Non-enforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations. This Court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such “non-enforcement” decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual. Not only does this proposition run afoul of traditional exercises of prosecutorial discretion that generally receive judicial deference, but it also flies in the face of the very concerns that informed the Heckler Court’s holding. This Court finds the DHS Directive distinguishable from the non-enforcement decisions to which Heckler referred, and thus concludes that Heckler’s presumption of unreviewability is inapplicable in this case.

Next, Judge Hanen determined that the enabling legislation left discretion only as to the means of deportation and not as to whether the specified persons were to be deported:

The DHS’ job is to enforce the laws Congress passes and the President signs (or at least does not veto). It has broad discretion to utilize when it is enforcing a law. Nevertheless, no statute gives the DHS the discretion it is trying to exercise here. Thus, Defendants are without express authority to do so by law, especially since by Congressional Act, the DAPA recipients are illegally present in this country. As stated before, most, if not all, fall into one of two categories. They either illegally entered the country, or they entered legally and then overstayed their permission to stay. Under current law, regardless of the genesis of their illegality, the Government is charged with the duty of removing them. Subsection 1225(b)(1)(A) states unequivocally that the DHS “shall order the alien removed from the United States without further hearing or review….” Section 1227, the corresponding section, orders the same for aliens who entered legally, but who have violated their status. While several generations of statutes have amended both the categorization and in some aspects the terminology, one thing has remained constant: the duty of the Federal Government is to effectuate the removal of illegal aliens. The Supreme Court most recently affirmed this duty in Arizona v. United States: “ICE officers are responsible for the identification, apprehension, and removal of illegal aliens.” 132 S.Ct. at 2500.

Notably, the applicable statutes use the imperative term “shall,” not the permissive term “may.” There are those who insist that such language imposes an absolute duty to initiate removal and no discretion is permitted. Others take the opposition position, interpreting “shall” to mean “may.” This Court finds both positions to be wanting. “Shall” indicates a congressional mandate that does not confer discretion—i.e., one which should be complied with to the extent possible and to the extent one’s resources allow. It does not divest the Executive Branch of its inherent discretion to formulate the best means of achieving the objective, but it does deprive the Executive Branch of its ability to directly and substantially contravene statutory commands. Congress’ use of the term “may,” on the other hand, indicates a Congressional grant of discretion to the Executive to either accept or not accept the goal. Texas v. United States, (S.D. Tex. Feb. 16, 2015)

Despite the broadness of Judge Hanen’s opinion, his ultimate ruling was fairly narrow. He held that DHS should have (at the very least) followed a notice-and-comment procedure before making such a major change in its activities. If the notice-and-comment requirement is unfamiliar to you, see my post on agency rulemaking here. For a general discussion of the President’s power over administrative agencies, see my post here.

Of course, it is in fierce debates over public policy that these vital questions about separation of powers and procedural rules arise. Like many high profile court cases, the ultimate determination of questions about the role of executive agencies in our tripartite democratic system has consequences which extend beyond the settlement of the dispute between the conflicting parties or the context-specific public policy implications, as important as those matters might be in their own right. In the meantime, students of both immigration policy and the role of administrative agencies can learn a lot from the litigation as it unfolds. The Obama administration has vowed to appeal this decision. The President himself had this to say in response to the ruling:

Much recent attention has focused on a single court decision in Texas in response to a partisan lawsuit that delays some of these lawful, common-sense steps…I disagree with this judge’s ruling. Just yesterday, the Department of Justice asked the court for an emergency stay of this misguided decision, and it has already filed a notice of appeal. My administration will fight this ruling with every tool at our disposal, and I have full confidence that these actions will ultimately be upheld.

It’s time to end the era of manufactured crises, put politics aside and focus on doing what’s best for America. So while I will fight any attempt to turn back the progress we’ve made or break up families across our country, I welcome the opportunity to work with anyone who wants to build on the improvements we’ve put in place, and fix our broken immigration system once and for all.

Throughout our history, America’s tradition as a nation of laws and a nation of immigrants has continually shaped us for the better. If we renew that tradition, and build upon it for future generations, there’s no limit to what we can achieve.

Stay tuned…

A.K.

 

U.S.-China Climate Deal and “Hyperbolic Congratulations”

Michael Levi, a senior fellow at the Council on Foreign Relations, recently made a fair point in the Washington Post about the U.S.-China climate deal that I want to recognize. While conceding that the hype surrounding the deal amounts to “hyperbolic congratulations (‘game-changer‘, ‘historical‘, ‘this century’s most significant agreement‘),” he goes on to insist that:

It is also wrong to fix narrowly on the two-degree benchmark. It is a laudable goal, and one that is technically achievable, but by most honest reckonings, is politically implausible. And the difference between other amounts of warming – say between two degrees and three and four – could be dramatic. An agreement that cuts emissions is worthwhile even if it doesn’t deliver the two degree goal.

To be sure, none of this makes the deal the “gamechanger” that some people have heralded, or means that it will “save the world” as others have claimed. Critics and enthusiasts of climate diplomacy alike focus too much on super-high standards when assessing climate agreements. Supporters have wrongly obsessed with achieving a comprehensive global climate treaty, and their opponents have gloated when attempts to negotiate such an agreement have inevitably failed. (A corollary: Those who welcomed the U.S.-China announcement primarily as a sign that a big global treaty might be possible next year are missing its main point.) Just as Cold War arms control never eliminated the risk of nuclear war, even as it substantially reduced nuclear dangers, so climate diplomacy can help the world by reducing the risks of global warming, even as it never rids the planet of them. That’s the right standard by which to judge the big U.S.-China climate announcement – and, by that measure, the deal is a genuine success.

Again, fair point…

 

A.K.

Updating Schoolhouse Rock in an Era of Dysfunction

I’m gonna go out on a limb and predict that, after all the hemming and hawing, we will ultimately end up with immigration reform in the form of legislation in the coming Congress–if not in one major bill, then in piecemeal confidence-building efforts. It seems the only other options for congressional Republicans boil down to either letting the President’s action go unchecked or to check it with escalating punitive obstruction which will be gratifying in the immediate term, but ultimately detrimental to their own newly resurgent (and precarious) prestige. Another option is a legal challenge which might ultimately succeed, but perhaps not within a time horizon relevant to the present conflict. As an aside, a legal challenge may still prove attractive if it adds momentum to the 2016 presidential contest.

In the meantime, SNL has demonstrated yet again that its true calling is not the quirky, slightly raunchy humor to which it often resorts, but political satire. Here is an update to the Schoolhouse Rock classic “I’m Just a Bill”:

A.K.

A Classic(al) Response to the President’s Plan

President Obama will finally announce his intended executive actions on immigration tonight at 8/7 central after a dinner with congressional Democrats. You will be able to catch that live here.

Meanwhile Senator Ted Cruz (R-TX) can keep us entertained with a speech from Cicero, originally delivered in 63 B.C., modified for this occasion:

Classic!

 

UPDATE: Here is President Obama’s address.

Obama’s executive action:

— Delays the deportation of the undocumented parents of children who are in the country legally.

— It also protects any children who were brought to this country illegally before January 1, 2010.

— It directs immigration officials to concentrate on deporting criminals and those who pose a threat to national security.

Best line:

“But even as we focus on deporting criminals, the fact is that millions of immigrants in every state, of every race and nationality still live here illegally. And let’s be honest: tracking down, rounding up,  and deporting millions of people isn’t realistic. Anyone who suggests otherwise isn’t being straight with you.”

 

AKS

Deportations and the Limits of Executive Discretion

As I often explain to my students, Presidents can uncontroversially direct administrative agencies to do those things which lay within the agencies’ congressionally defined authority. But the question arises as to how far this power can be taken before it intrudes upon the province of the legislative branch. (See the Montesquieuan notion of a separation of legislative and executive authority). After all, the President’s Constitutional charge is not to make law, but to “take care that the laws be faithfully executed” (Art II, Sec. 3). Due to the failure of Congress to pass the long-awaited, much-debated Comprehensive Immigration Reform bill, the President is set to announce tomorrow his plan to take executive action to suspend the deportation of up to 5 million persons in the country illegally. Here’s a good summary of the issue:

While some prominent folks have argued that this action is certainly lawful [Update: See one legal scholar explain “The Realities of Administrative Discretion“], others have argued with equal certitude that it is unlawful [Update: See one legal scholar explain “Why Obama can’t declare himself king“]. What is more interesting is that President Obama has seemed to occupy both camps over the last few years (though, as the Washington Post reported yesterday, he denies changing his position). See this clip below from 2011 where the President responds to a question about whether he has the authority to halt deportations:

Then, as late as 2013, President Obama again denies he has such authority:

Though this issue is certainly debatable, the most damning condemnation of Mr. Obama’s planned use of executive authority may be the President himself.

Perhaps, it was this drunken satirical exchange with Mitch McConnell that provoked this change:

 

A.K.

Climate Coup?

So, it is good to know I am in good company in my lack of enthusiasm about the US-China climate agreement. Regulation scholar Marc Eisner offered this round-up on his blog today:

There are plenty of reasons why one should be skeptical as to China’s ability/willingness to meet its own commitments, as Tyler Cowen (Marginal Revolution) suggests.

With respect to the US, there is no binding treaty on climate that can be submitted to the Senate (for obvious reasons). Everything rests on historical trends in greenhouse gas emissions relative to GDP—the Bush administration’s “greenhouse gas intensity” much ridiculed by environmentalists—and the ability of the EPA to achieve reductions via rules grounded in decades-old statutory authority. Even if the Obama EPA is committed to climate policy, it is not clear that future presidents will appoint administrators with a comparable commitment. More importantly, Congress has proven unwilling in the past to pass new statutes to directly address climate change and quite willing to use the appropriations process to shape regulatory actions. See the Economist’s coverage here.

Bottom line: I find it difficult to conclude that the climate agreement will amount to much in the long run, despite the breathless claims of its historic importance. Ultimately, it is difficult to see how we bring about significant reductions in greenhouse gases without increasing the price of carbon-based fuels, and the most effective means of doing this is  a carbon tax. In the currently political environment, the likelihood of a carbon tax is quite limited.

So Marc, Mckayla, and I are not impressed…

Not Impressed China Climate Deal

 

A.K.