Wednesday, January 28, 2015

AG Nominee Raises Doubts About Enforcing Employment Law

The defense of the president's executive dictates on immigration usually requires proponents to twist themselves into pretzels, and Attorney General nominee Loretta Lynch was no exception to this general trend in her Senate testimony today.  Lynch even seemed almost unwilling to deny that the president could basically nullify any law at whim.

Beyond Lynch's vagueness about her beliefs regarding the limits of executive power, she also seemed to imply that she thought that the U.S. prohibition on illegal immigrants working violated their rights.  The following exchange between Lynch and Alabama Republican Jeff Sessions is a revealing one (transcript via Hot Air):
SESSIONS:
Let me ask you this: In the workplace of America today when we have a high number of unemployed, we’ve had declining wages for many years, we have the lowest percentage of Americans working, who has more right to a job in this country? A lawful immigrant who’s here, a green-card holder or a citizen, or a person who entered the country unlawfully?
LYNCH:
Well, Senator, I believe that the right and the obligation to work is one that’s shared by everyone in this country regardless of how they came here. And certainly, if someone here, regardless of status, I would prefer that they be participating in the workplace than not participating in the workplace....
This viewpoint represents a radical departure from decades of immigration law.  A key part of Reagan's 1986 amnesty was the trading of amnesty for new federal powers to punish employers who hired illegal immigrants.

As Politico reports, Lynch later tried to walk this statement back:
However, later in the day, Sen. Chuck Schumer (D-N.Y.) gave her the opportunity to clarify her statement and she said she didn't mean to suggest that it's legal for everyone in the U.S. to be employed.
"In my family as we grew up, we were all expected to try and find employment as part of becoming a responsible adult," Lynch said. "I was making a personal observation based on work ethics passed on by my family, not a legal observation."
Asked by Schumer whether immigrants have a right to work regardless of status, Lynch said: "No, there is not, to my knowledge.”
A Justice Department official told POLITICO that Lynch's original comments were intended to refer only to those authorized to seek employment and not to others.
"U.S. Attorney Lynch does not believe any right to work exists for those who have not been authorized to seek employment by the Department of Homeland Security, and she has aggressively prosecuted employers who have knowingly made illegal hires," said the official, who asked not to be named. "Sessions was asking whether citizens have an exclusive right to work in the U.S., and she was being mindful of the scores of categories of individuals who are eligible to work though they might not be citizens. But she certainly does not believe those who entered the country unlawfully and have no work permit whatsoever have any right to a job."
But the words of an anonymous official at Justice are a poor substitute for Lynch's own.

Some on the right, including John Hinderaker, have suggested that Lynch's remarks disqualify her from becoming AG.  Whether one agrees with that judgement or not, it seems clear that senators have an obligation to continue to sound out her beliefs on executive power and the ability of the federal government to regulate employment.  The principal officers of the Obama administration need to go on the record regarding their belief in and willingness to abide by constitutional norms.

Tuesday, January 27, 2015

Senate Democrats Threaten to Filibuster DHS Funding

A letter released by the Senate Democratic Caucus expresses the willingness of all Senate Democrats to oppose any Department of Homeland Security funding measure that forbids the enforcement of the president's recent executive actions on immigration.  Citing worries about national security and the president's threat to veto any DHS measure that rebukes his power grab, Senate Democrats demand a "clean" funding bill.  This letter also expresses a hostility to short-term funding measures for DHS.

Leaving aside the irony of senators threatening to filibuster a bill they say is vital for national security, it is also worth noting that many Senate Democrats appear to be unwilling to walk the walk when it comes to defending congressional power.  In the past, at least six Senate Democrats and one independent have expressed opposition to, or at least skepticism of, the president's actions: Democrats Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), Joe Manchin (W.V.), Claire McCaskill (Mo.), Jeanne Shaheen (N.H.), and Jon Tester (Mont.), and independent Angus King (Maine).  Many more Democrats trumpeted the dangers of an out-of-control executive during the administration of George W. Bush, though many now seem to have changed their minds about the role of executive power.  Apparently, some Democrats are now, despite their earlier promises, becoming partisans of executive supremacy.

In response to this threat, Senate Republicans seem to have at least three options:

  • Call the Democrats' bluff and put forward a funding measure that pushes back against the president's power grab.  If Democrats do filibuster a national-security funding bill, let them pay the political price for that filibuster.  Republican leaders can then decide whether to offer a clean bill or to allow DHS to potentially "shut down."
  • Preemptively give into Democratic demands and immediately offer a clean funding bill.
  • Follow the strategy suggested by the editors at National Review: "Pass one bill to fund all of DHS except for U.S. Citizenship and Immigration Services, which is responsible for implementing the president’s amnesty, and another bill that funds CIS but prohibits it from implementing the November amnesty."  Senate Democrats did not explicitly say that they would oppose that proposal, and splitting CIS from the rest of DHS funding would eliminate the "national security" argument.

Friday, January 23, 2015

Testing, Testing

This week, the Senate began hearings about revising No Child Left Behind.  Tennessee Republican Lamar Alexander---the chair of the Health, Education, Labor, and Pensions Committee---has issued a draft text that would potentially reform testing standards.  Currently under NCLB, the federal government demands a set number of tests each year.  Alexander's proposal would potentially give states the option to devise their own testing standards and regimes.  Many across the political spectrum have been critical of the current emphasis on standardized testing, though the Obama administration has continued to defend the importance of annual standardized tests.

Molly Hensley-Clancy has an interesting look at the implications of NCLB and the reform of NCLB for testing companies.

Guest-Worker Tensions

Reports that Marco Rubio is potentially mobilizing to get into the GOP presidential race have provoked much speculation from pundits.  James Pethokoukis makes a very interesting case for Senator Rubio as "the Man With the (21st century, middle-class, conservative) Plan."  Pethokoukis finds much to celebrate in Rubio's latest book:
In his new book, American Dreams: Restoring Economic Opportunity for Everyone, Rubio outlines an economic plan that takes timeless conservative principles — faith, family, free enterprise – but adapts their policy manifestations to the current challenges confronting middle- and working-class America. For instance: As part of broader tax reform that would reduce anti-investment business taxes, Rubio would also provide immediate tax relief to families by expanding the federal Child Tax Credit. This reflects the economic reality that cranking up GDP growth, while a necessity, may no longer be sufficient to lift all boats — at least not right away. Macroeconomic trends such as globalization and automation are restructuring the American economy so that income gains are flowing heavily to those at the top. The Rubio plan, jointly developed with Sen. Mike Lee, also addresses the fundamental financial unfairness that parents — unlike childless adults – pay the taxes that support Medicare and Social Security while also investing in future taxpayers, their kids. There’s a lot more in the book, everything from innovative higher education reform to pro-work support for low-income families to anti-cronyist deregulation.
Many of Senator Rubio's ideas have merit, and it is worthwhile indeed to find modern solutions to contemporary problems while still keeping true to enduring principles.

However, there seems to be some tension between a pro-market, pro-middle-class approach to conservatism and a support for swelling the number of guest workers admitted to the country annually.  Senator Rubio was a major defender of the Gang of Eight immigration bill, which would have increased guest-worker numbers.  And he is a co-sponsor of the Immigration Innovation bill, which would cause a massive increase in the number of guest workers.  Guest-worker policies are usually not pro-market and are hardly pro-worker.

Republicans of all stripes would be wise to listen to Pethokoukis's call for a solutions-oriented conservatism.  And hopefully Senator Rubio, along with other possible Republican candidates for president, will be able to advance such a vision.  But it is unclear how advocating for more guest workers fits into an opportunity-oriented, middle-class conservative plan.

Thursday, January 22, 2015

Romney Reunion Rumors

Eliana Johnson reports that many key players in Mitt Romney's inner circle are planning on meeting tomorrow:
The meeting will include members of the former Massachusetts governor’s inner circle: his son, Tagg, top aides Spencer Zwick and Matt Waldrip, longtime confidante Beth Myers, political consultant Eric Fehrnstrom, longtime pal Bob White, and adviser Ron Kaufman.
The Boston Globe notes the following: "Romney himself is not planning to attend, and one aide cautioned not to read too much into the meeting, saying, 'People are meeting all the time.'"

Tuesday, January 20, 2015

Running Against Washington

President Obama raised some valid points about the need for economic renewal for working Americans in tonight's State of the Union.  And there were some well-turned phrases, too.

However, there is a crucial tension in the president's remarks.  At the end of this speech, the president seemed to pivot to run against Washington:
So the question for those of us here tonight is how we, all of us, can better reflect America's hopes. I've served in Congress with many of you. I know many of you well. There are a lot of good people here, on both sides of the aisle. And many of you have told me that this isn't what you signed up for -- arguing past each other on cable shows, the constant fundraising, always looking over your shoulder at how the base will react to every decision.

Imagine if we broke out of these tired old patterns. Imagine if we did something different.
Understand -- a better politics isn't one where Democrats abandon their agenda or Republicans simply embrace mine.

A better politics is one where we appeal to each other's basic decency instead of our basest fears.

A better politics is one where we debate without demonizing each other; where we talk issues, and values, and principles, and facts, rather than "gotcha" moments, or trivial gaffes, or fake controversies that have nothing to do with people's daily lives.
This appeal to a "better politics" is all well and good.  However, it crashes into the fact that the White House and its allies have devoted considerable energy to demonizing its opponents.  The president may be trying to run against Washington, but, as chief executive, he has had a considerable role in shaping national politics.

Rather than better politics, we have all too often seen trolling politics out of the White House.  It is the president who has chosen the lonely road of executive supremacy rather than constitutional consensus.  It is the president who has often appealed to the resentments of class warfare.  It is the president's allies who constantly try to paint all opposition to the "progressive" cause du jour as the product of bigotry, narrow-mindedness, and greed.

Moreover, even as the president runs against Washington, his agenda seeks to concentrate even more power---for health-care, education, etc.---in the bureaucratic apparatus of the federal capital.

Sunday, January 18, 2015

Fate of the Middle Class

Reuters surveys the economic landscape and finds that the middle class is still struggling:
The forces at work in the American economy appear so entrenched that Obama may be remembered as the president who pulled the nation from its worst downturn since the Great Depression, but failed to arrest deepening economic inequality.
The Federal Reserve, under Obama appointee Janet Yellen, has put money in almost all Americans' pockets with near zero interest rates that have held down mortgage payments, allowed companies to reinvest, and boosted job creation.
But the Fed's Survey of Consumer Finances shows how uneven the distribution of that stimulus has been. Between 2010 and 2013, as recovery took hold and stock markets soared, the average net worth of families in the top 40 percent of income earners grew. For all others average net worth shrank, declining 19 percent for the middle fifth.
Similarly, the average earnings for families in the top 10 percent grew more than 9 percent from 2010 through 2013, while those at other levels stagnated or shrank. For the middle fifth, average earnings fell 4.6 percent.
Over the six years through 2013, the middle fifth's average annual family earnings fell to $47,243 from $53,008 while their average net worth dropped to $170,066 from $236,525.
There are limits to what the president (or any government official) can do to shape the economy.  But it is not exactly clear how many of the president's policies---from Too Big to Fail to the encouragement of the growth of illegal labor---advance the interests of the middle class.  They may in fact hurt it.

Tuesday, January 13, 2015

The Big Picture

As House Republicans prepare a legislative package that would fully fund the Department of Homeland Security while denying funding for the president's fiats on immigration, Speaker Boehner makes clear that concern over a violation of Constitutional norms motivates much of the GOP's actions:
“Our goal here is to fund the Department of Homeland Security. Our second goal is to stop the president’s executive overreach,” he said. “This is not the way our government was intended to work. The president said 22 times that he didn’t have the authority to do what he eventually did. He knows the truth here and so do the American people.”
Along the lines of those norms, Joel Gehrke reports on a memo written by an expert at the Law Library of the Library of Congress to the Senate Judiciary Committee that makes clear the long tradition of the executive being obligated to enforce the law.  Even the kings of England could not nullify laws at a whim:
One hundred years before the American Revolution, another British king had “attempted to suspend a number of laws,” contributing to the onset of the Glorious Revolution in England, a senior foreign-law specialist at the Law Library writes in the memo to the Senate Judiciary Committee. “King George III,” the specialist goes on to remind the committee, “was thus unable to enact or repeal any laws unilaterally without the involvement of Parliament.”
Some of the president's allies may be cheering executive absolutism now, but the notion of an executive with absolute power runs afoul of many intellectual strands within the American political tradition.

Wednesday, January 7, 2015

On Toothless Hashtags

Today's terrorist attack on the French magazine Charlie Hebdo is an attack on the media at large and the principles of free expression.  Many have taken to social media, blogs, online publications, television, and other platforms to criticize this attack.

This criticism is no substitute for other kinds of actions that may need to be taken in order to bring the killers to justice and prevent future attacks of this kind.  Nor does tweeting a popular hashtag require the same amount of courage as does writing for a magazine that has been targeted by terrorist groups.  However, popular criticism of this atrocity does play a valuable role.  Terrorism in part operates by breaking the back of public opinion, cowing people into voluntarily giving into the arbitrary demands of a given set of terrorists.  By filling the air with fear, terrorism tries to undermine the public faith, tolerance, and conventional liberties of civil society.  Condemning this terror and expressing support for the principles of civil society are part of the defense of civil society.  And calling out those who would excuse this atrocity also contributes to defending the principles of civil society.

Blog posts alone will not defeat the forces of terror, but rhetorical resistance is important.  The terrorists attacked Charlie Hebdo because they recognized the power of media and rhetoric.  In addition to taking concrete actions, we can mourn the lost, defend the principle of free expression for which they fought, castigate those who would blame the victims of terror for daring to express themselves, and celebrate the virtues of a free society.

Friday, December 19, 2014

Voldemort Returns

A few thoughts regarding movie cancellations, cyber threats, and free speech:

The media often focuses on purported trade-offs between national security and civil liberties, but recent events suggest that defenders of civil liberties very much have an interest in a strong national defense.  Warding off the threats of rogue states, terrorist groups, and other unsavory actors can keep these forces from undermining the enjoyment of liberties (especially free expression).

The Founders established the institutions of the U.S. government in part to defend the liberties of the inhabitants of this Republic.

Defending freedom in part has to do with laws, institutions, military efforts, and so forth.  But this defense also involves the cultivation of cultural norms.  One of these cultural norms is, as Solzhenitsyn reminds us, the value of civic courage.

Those who threaten violence in order to shut down the voices with whom they disagree are usually coming from a position of fear.  The free exchange of ideas is not for the faint of heart.  Defending the idea of cultural conversation in the abstract takes intellectual courage, but so too does participating in that conversation.  We lose much by empowering those who seek to silence civil debate with threats of violence.

Wednesday, November 26, 2014

Agreeing with Critics

Heckled by activists, President Obama declared yesterday that he "just took an action to change the law" in issuing his executive actions on immigration.  Many of the defenders of executive supremacy have argued that the president is only prioritizing enforcement of the laws rather than changing the laws, and many opponents of the president's actions have argued that they have crossed a line between prosecutorial discretion and the executive rewriting the laws.  Inadvertently, the president seems here to be agreeing with the critics of his executive authority that he is actively changing the law.

Many of those who have criticized the Obama administration's record of minimally enforcing immigration laws have argued that an influx of illegal labor undermines the wages of the average American.  A number of those critics have also worried that the president's executive actions on immigration could further harm the economic prospects of native-born Americans and legal immigrants.  Peter Beinart, who has vigorously defended the president's sweeping use of executive authority, agrees that President Obama's decisions would actually harm many Americans: "Will those opportunities [for illegal immigrants affected by the president's actions] come at the expense of some other Americans, whose legal status had previously given them an economic advantage? Sure."

Friday, November 21, 2014

Edict Issued

President Obama has issued the vaguest outline of his actions on immigration.  As Steve Holland and Roberta Rampton of Reuters phrased it, the president "imposed the most sweeping immigration reform in a generation on Thursday."

Many Democrats in Congress seem to be willing to cede more power to the president. But a few dissenting voices have started to rise. Perhaps the starkest criticism came from Senator Angus King, an Independent from Maine who caucuses with the Democrats:
King...wondered if the next president would come in and use executive action to pull the plug on the Affordable Care Act’s online insurance exchanges.
“I’m afraid the president has changed the subject from immigration to his action. The headlines from the debate this weekend won’t be about immigration, it will be about, ‘Can the president do this? Should he do it?’” King said. “How are we going to feel when a future president feels that the Affordable Care Act is a bad law?”
Time will tell how many Democrats sign on to this line of thinking.

Thursday, November 20, 2014

Beyond Partisanship

At NRO, I examine some of the hints of potential resistance to the president's case for executive supremacy:
For all the president’s invocations of the need to transcend rank partisanship in 2008, the Obama administration might have expected that the president’s sweeping executive actions would cause the Beltway-media complex to dissolve into partisan controversy. However, as the president edges closer to announcing his executive actions, there are signs that the White House’s game plan might be facing some difficulties. Recent rumblings from the media and the silence from congressional Democrats suggest that, if the president does indeed take sweeping action, the administration’s preferred media storyline could be scrambled and the president’s case for executive supremacy could face considerable opposition.
The president and his allies are likely to try to cast this issue of executive authority in partisan terms.  If opponents of executive overreach are going to be successful, they will likely need to shift this debate past partisanship to focus instead on deeper principles and more enduring precedents.

Wednesday, November 19, 2014

Prelude

It seems as though President Obama will proclaim his executive actions on immigration tomorrow.  A WSJ-NBC poll showed that only 38% of Americans support the president taking unilateral action on immigration.  As a point of reference, Richard Nixon never seemed to dip below 40% of public support for his policies in Vietnam, according to Gallup.

It's also worth noting that, in the lead-up to the president's proclamation, he will be reportedly dining exclusively with congressional Democrats tonight.  The president may be hoping that partisan polarization will allow him to centralize power further through executive decrees.

Tuesday, November 18, 2014

Uncharted Territory

At the Washington Post, Karen Tumulty and Katie Zezima note that the president's case for executive supremacy will "will expand the authority of the executive branch into murky, uncharted territory."

Meanwhile, Michael D. Shear at the New York Times also draws attention to the historical ironies of President Obama's potentially sweeping executive actions on immigration:
[President Obama is] poised to ignore stark warnings that executive action on immigration would amount to “violating our laws” and would be “very difficult to defend legally.”
Those warnings came not from Republican lawmakers but from Mr. Obama himself.
Some in the media seem increasingly to be worrying about the broader implications of the president's case for a super-charged executive branch.  (Even some voices in The New Republic are starting to express concerns.)  Charles C.W. Cooke asserts the importance of Constitutional norms for the Republic---and fears that the president's actions may imperil some of these norms.

It remains unclear whether congressional Democrats will sign on to the case for executive supremacy.  Harry Reid, Dick Durbin, Chuck Schumer, Patty Murray, Bob Menendez and Michael Bennet all signed a letter cheering the president's reported desire to take more power for himself.  But Greg Sargent passes along the worries of various activists that some Democrats might not be so sure about executive supremacy:
Among the Democrats believed to be at risk are Joe Manchin, Heidi Heitkamp, Jon Tester, Claire McCaskill, and Joe Donnelly. Angus King (who is an independent but caucuses with Dems) is also a question mark.
Jeanne Shaheen, when she ran for reelection, was critical about the president taking executive action.  And retiring Michigan senator Carl Levin has now implied that the GOP's desire to confront the president on sweeping executive action would be quite legitimate.  In the days ahead, might not more Democrats, having realized the implications of the Obama precedent, step forward?