President Obama: What's next?

[yovargas]

I have no idea how this works legally (it seems weird to me that Obama can just do it) but I was very happy to see this. Immigration is one of the areas where I am strongly on one side and it is the side that treats immigrants with dignity and respect and not like a junk that needs to get out of the way.

[Voronwë the Faithful]

What do you mean, vison? Certainly he has "waited too long" for those who no longer qualify, but he just as certainly has not "waited too long" for those who do qualify. In any event, this is nothing but a stopgap measure. If the president loses the election, Romney will almost certainly reverse this policy. A comprehensive immigration reform litigation still needs to be passed, but at least this makes things better for many millions of people who are American in all but name.

[River]

I have no idea how this works legally (it seems weird to me that Obama can just do it) but I was very happy to see this. Immigration is one of the areas where I am strongly on one side and it is the side that treats immigrants with dignity and respect and not like a junk that needs to get out of the way.

I think it works because the Executive Branch decides how laws get enforced.

[vison]

What do you mean, vison? Certainly he has "waited too long" for those who no longer qualify, but he just as certainly has not "waited too long" for those who do qualify. In any event, this is nothing but a stopgap measure. If the president loses the election, Romney will almost certainly reverse this policy. A comprehensive immigration reform litigation still needs to be passed, but at least this makes things better for many millions of people who are American in all but name.

I meant as far as acting at all. So close to the end of his term. I think it will take time for the reaction to set in? I wonder if he should have done this sooner, that's all. As with gays in the military.

It seems like he's doling out the good stuff, if you follow me.

[nerdanel]

I have no idea how this works legally (it seems weird to me that Obama can just do it) but I was very happy to see this.

As you already know, I am happy with this, too. However, one question that I have is this: imagine that Obama swiftly implements this, and a number of youth and young adults come forward and essentially "register" with the government in order to receive a work permit. Further imagine that either in 2013 or 2017, a Republican becomes President and decides to resume full enforcement. Won't the people who have registered then be "sitting ducks" for deportation, where they might otherwise have continued to fly under the radar (albeit with a lot of jobs not open to them) were it not for this suspension of enforcement?

Immigration is one of the areas where I am strongly on one side and it is the side that treats immigrants with dignity and respect and not like a junk that needs to get out of the way.

I think my biggest frustration with the "other side" is their tendency to cite to the law as though "the law" automatically has morally positive force. Now, to be clear, I think most of our laws are morally neutral or positive. And I also believe that there are some positions in which people must straightforwardly apply or follow the law, regardless of their personal moral conclusions about the propriety of any law - e.g. judges and other members of the judicial branch. However, we have had many, many morally wrong laws in the course of our history - in particular, laws authorizing discrimination or outright persecution against minorities or the less privileged, whether on the basis of race, class, sexuality, gender ... or immigrant status. Some of these laws remain in force today. It seems both incorrect and intellectually sloppy to cite to the mere existence of a law as proof that enforcement of the law is morally correct and violation of the law is morally wrong. The current immigration laws are inhumane in many ways. I look forward to their revision.

I'd also note that the main arguments I'd like for the "other side" to explore are the economic ones. I'd really like to see reasoned, conservative treatment of the economic challenges of (for instance) extending legal status to the current population of undocumented residents. I'm not saying that no such treatments exist. I'm saying that the public discourse is overwhelmed with tired rhetoric about "illegals" who are "stealing our resources," "taking our jobs," and "breaking our laws," with minimal nuance or basis in clear statistics.

[nerdanel]

The president took another action this weekend that indicates that rather than moving further to the center in order to try to help cement his re-election he is instead working to help cement his base. This time he took a fairly bold action in announcing that he will be essentially going around Congress by implementing much of what would be achieved by the stalled Dream Act. Essentially, he has declared that any undocumented immigrant under 30 who came to the country before the age of 16, have lived in the country for at least five years, and has a high school diploma or equivalent or served in the military, will not be deported.

With the Hispanic vote promising to be a significant factor in the election, and many getting more than a little impatient with the president's lack of action on immmigration reform (which has more to do with the fact that he would not be able to get anywhere with Congress than anything else), this certainly appears to be an action taken for political reasons. But it also, as the President himself stated, the right thing to do. This is similar to his announced support of same sex marriage. The political implications are difficult to calculate: it could cost him as many votes as it could gain. But it is heartening, to me at least, to see him more and more when faced with this type of balance choosing the right course of action over the safe course of action.

As for this, I just wanted to point out that the President's recent actions on same-sex marriage and immigration illustrate what those of us disillusioned leftists have said throughout this term: he was capable of taking these actions at any point in his first term, and his "base" was rightly disillusioned as we waited year after year for him to do so. And had we been understanding rather than angrily judgmental, he would never have taken these actions at all, as you effectively note by stating that this was an action taken for political reasons.

[Dave_LF]

This action will also force Romney to take a position. Perhaps Obama's team has decided that Hispanics are going to decide this election. If so, taking a position that is popular with them, and forcing his opponent to either take an unpopular position or further annoy his base, would actually be a reasonable political move.

[yovargas]

I think my biggest frustration with the "other side" is their tendency to cite to the law as though "the law" automatically has morally positive force.

YES!! While I have a strong position on this issue, I am very much willing to listen to and consider the pragmatic, economic issues that "softer" immigration laws may bring up. But when I drive by the nearby house with the big "NO AMNESTY - OBEY THE LAW" sign on its front lawn, written as if by mere fact of it being law it is good and right, it makes me so

[vison]

This action will also force Romney to take a position. Perhaps Obama's team has decided that Hispanics are going to decide this election. If so, taking a position that is popular with them, and forcing his opponent to either take an unpopular position or further annoy his base, would actually be a reasonable political move.

I think so, too. But, as I said above, has he waited too long?

nerdanel has articulated my views. As she often does!

On the other hand, I can see why this move is controversial.

I know business people in the US who have more or less knowingly employed illegal aliens for decades. If there had been a real desire to stop the practice, those employers would be the ones in trouble with the law, not the employees.

I don't blame people for wanting a better life. Three of my 4 grandparents were immigrants. They came to Canada easily, back in the old days. It's harder now. We do not have the problems with illegals that the US does, but it is, nonetheless, on the radar.

Nowadays I see what we never saw before: Latin Americans, mostly Mexicans, brought in to work in the fields here. Presumably all the paperwork is in order, but I also know some of these "labour contractors" and they are a shifty bunch. Still, so far, only married men with families are welcome. And the families stay home. You can't walk from Mexico to Canada very easily.

I think that in the end Mr. Obama is right. And it should save money, too.

[Voronwë the Faithful]

The president took another action this weekend that indicates that rather than moving further to the center in order to try to help cement his re-election he is instead working to help cement his base. This time he took a fairly bold action in announcing that he will be essentially going around Congress by implementing much of what would be achieved by the stalled Dream Act. Essentially, he has declared that any undocumented immigrant under 30 who came to the country before the age of 16, have lived in the country for at least five years, and has a high school diploma or equivalent or served in the military, will not be deported.

With the Hispanic vote promising to be a significant factor in the election, and many getting more than a little impatient with the president's lack of action on immmigration reform (which has more to do with the fact that he would not be able to get anywhere with Congress than anything else), this certainly appears to be an action taken for political reasons. But it also, as the President himself stated, the right thing to do. This is similar to his announced support of same sex marriage. The political implications are difficult to calculate: it could cost him as many votes as it could gain. But it is heartening, to me at least, to see him more and more when faced with this type of balance choosing the right course of action over the safe course of action.

As for this, I just wanted to point out that the President's recent actions on same-sex marriage and immigration illustrate what those of us disillusioned leftists have said throughout this term: he was capable of taking these actions at any point in his first term, and his "base" was rightly disillusioned as we waited year after year for him to do so. And had we been understanding rather than angrily judgmental, he would never have taken these actions at all, as you effectively note by stating that this was an action taken for political reasons.

You and Roberto Unger.

[River]

Out of curiosity, are these two-year work permits going to be renewable? Will a holder of one of these be able to adjust their status to another visa, like a H1 or F? Because someone (nel I think) raised a good point. This looks really good on paper, but what'll happen to these people once their permit runs out? Are they going to be gambling on action () from Congress? Back where they started? Rushing to marry American citizens? Without some means of renewal or adjustment to another visa, these permits are like bandaids for broken legs.

[axordil]

I'd call them splints, not bandaids. They really do address an issue, for the time being.

[nerdanel]

I'm not sure if you all have been following the intriguing cases in which undocumented immigrants have sought licenses from their state bars. We have one such case in California, and I believe Florida has one as well. In the California case, the State Bar is on the side of the applicant, who has cleared character & fitness and has passed the California bar exam. The California Supreme Court will make the final decision.

I am honestly mildly torn on this one, although I appreciate the State Bar's taking the stand that they have. They are correct that he could perform pro bono legal services, for instance, without running afoul of federal employment laws. But if he intends to use the license to practice for compensation, as seems likely, then he WILL be in violation of federal law. And while I may believe those federal laws are very unjust as applied to him, I'm unsure about whether the Supreme Court of California (whether via the State Bar or directly) should be in the business of directly enabling that violation. This goes to the point that I made yesterday: that I think that the judicial branch needs to be in the business of enforcing the laws rather than refusing to apply the ones with which they may have moral concerns. I could be persuaded that it's the right thing to do for the State Bar to issue this license, but I'm not quite there now.

To be clear: I think that he SHOULD be entitled to practice law in California, and I don't think he's done anything wrong (his parents brought him here at 17 months). The laws that dictate that he cannot do so (for compensation) should absolutely be changed. But when it comes to licensing attorneys to practice in front of the courts, I find myself moving closer to Holby's repeatedly stated position that problematic laws should be changed rather than disregarded.

An article from today's Recorder, the legal newspaper for the SF Bay Area:

SACRAMENTO — Lawyers backing the admission of an undocumented immigrant to California's Bar told the state Supreme Court on Monday that state and federal laws are no barriers to Sergio Garcia's efforts to become a licensed attorney.

Garcia, whose parents first brought him to the United States from Mexico when he was 17 months old, is a law school graduate who passed California's bar exam. The State Bar's Committee of Bar Examiners has recommended Garcia for admission. Now, in a matter of first impression, the state Supreme Court will decide whether his undocumented status should block his career path.

Attorneys for the Committee of Bar Examiners argued that while Congress has explicit authority to regulate immigration it has "no clear and manifest purpose" in overseeing attorney admissions. That power in California resides with the state Supreme Court, the attorneys said.

What's more, granting law licenses is not akin to providing an immigration-inducing public benefit, an act that can be regulated by the federal government, the lawyers argued.

"Mr. Garcia and other similarly situated individuals — who have graduated from law school and passed one of the most difficult bar examinations in the United States — are not seeking 'public resources,'" the brief filed Monday said. "Indeed there may be no better example of individuals who are relying on their 'own capabilities' as opposed to 'public resources.'"

Garcia is the son of a Dunsmuir beekeeper who became a U.S. citizen. Garcia applied for — and has been waiting for — a visa number since 1994, according to his attorney, Jerome Fishkin of Fishkin & Slatter of Walnut Creek.

The question of whether Garcia and, presumably, other immigrants like him should be admitted to the State Bar has drawn a bevy of legal interest. Seven individual attorneys, including UC-Davis School of Law Dean Kevin Johnson, signed on to the brief filed by the Committee of Bar Examiners.

Garcia's case has also drawn renewed interest because of the president's recent order making certain young undocumented immigrants with no criminal histories a low deportation priority. Garcia does not qualify for the protections because, at 35 years old, he does not meet the order's requirement that immigrants be younger than 31.

But his supporters say the president's order reflects a growing acceptance of immigrants who came to the U.S. as children and are now seeking work or a higher education.

"It's an additional indication to us that the federal government does not have a rigid classification for everyone," Fishkin said Monday.

Lawyers for Garcia and the Committee of Bar Examiners said laws barring the would-be attorney from working should not stop the state Supreme Court from granting him a law license. Garcia can legally perform pro bono work or act as an independent contractor, the lawyers said.

"Mr. Garcia's current 'employability' should not be tied to his licensure," the Bar Examiners wrote in their brief. "What Mr. Garcia, or any other foreign applicant, does with his license after licensure must comport with federal regulations and that is a matter strictly between him and the federal government."

The state Supreme Court has asked for briefs from the federal and state attorneys general. They have not been filed yet.

[Voronwë the Faithful]

Thanks for sharing that nel.

[nerdanel]

An update: Attorney General Kamala Harris has filed an amicus brief supporting Sergio Garcia's admission to practice.

Apparently Harris' post-admission ideas for Garcia include working outside the United States to advise clients about U.S. law or pro bono practice in California. Relatedly, I've noticed that a lot of articles exclude two details, one of which makes Garcia seem more sympathetic and one less so.

The more sympathetic detail is that his immigration petition (sponsored by his father, a US citizen) was approved in 1995, and he still has not received a visa. This is very upsetting - a direct consequence of our immigration policies, which blatantly discriminate on the basis of national origin. Garcia is in category F1 (unmarried sons and daughters of US citizens). For citizens of all countries other than Mexico and the Philippines, visas are available to such children who applied as of August 1, 2005. In contrast, visas are available to Mexicans who applied as of June 8, 1993 and Filipinos who applied as of March 1, 1994. This is deeply upsetting; to me, this is all the response that is necessary to conservatives who claim that "illegals should get in line and wait their turn like everyone else." To be asked to stand in a line that is eleven or twelve years longer because you are from the "wrong" country, and we want to slow down the rate at which your countrymen specifically become citizens of our country, seems blatantly inconsistent with fairness and the rule of law.

On the flip side, one fact that makes him less sympathetic than some of the "DREAMers" is that he's not in the category of people who were brought to the US as infants or toddlers, have never lived anywhere since, and who would be torn by deportation from the only homeland they have ever known. This fact is often concealed by his proponents when they discuss his case, but is captured in this LAT article. He lived in the US from just-before-2 until 9, and then departed for Mexico with his parents from 9-17. He returned to the US at 17 with his family, apparently reentering illegally, and was sponsored for a green card by his father after he arrived. As he was under 18, he may not have been responsible even for the decision to reenter with his family at 17. However, given that his childhood was split between Mexico and the US, he likely has greater ability to function in either country than someone who was only raised here.

Parenthetically, I will say that I raised an eyebrow at his deciding against criminal law practice because he could not "come to grips with the idea of defending someone who might be guilty" - especially coupled with his observations about the deficient justice system in Mexico: "When somebody got busted for any reasons in my town back in Mexico and they didn't have money to bribe the police, they had to stay in jail," he said. "They didn't have any rights. They didn't know how to represent themselves. There was no justice." I'm not sure how exactly he proposes to have a workable justice system and ensure that the state respects rights without lots of defense attorneys taking one for the team and representing people who might be (or who downright are) guilty. But he is not the only JD graduate on whom this rather basic point is lost.

[nerdanel]

One more update on this: the USDOJ has now weighed in against the issuance of a bar license to Sergio Garcia:

The California Supreme Court should not admit an undocumented immigrant to the State Bar, attorneys for the U.S. Department of Justice said in an amicus curiae brief filed Thursday.

Federal statutes governing when undocumented immigrants can receive local public benefits expressly prohibit states from issuing professional licenses to those in the country illegally, DOJ lawyers wrote in a 25-page brief.

The laws' "sweeping language demonstrates that Congress intended to act comprehensively in prohibiting receipt of such benefits by undocumented aliens, and they should be construed in a manner that furthers that evident purpose," DOJ attorneys said.

More here. (not sure if the link is subscription only)

[Primula Baggins]

I enjoyed this scan of Barack Obama's self-parodic entry in the Harvard Law Revue discussing his first hundred days as president of the Harvard Law Review. (The footnotes are worth deciphering.)

. . . All of these projects came perilously close to interfering with my most important obligation at the time: empowering all the folks out there in America who didn't know about me by giving a series of articulate and startlingly mature interviews to all the folks in the media. As I said at the time, I merely walked through doors that other folks had opened. (I have tried to put that adage into practice, by appointing a 2L editor to be my personal doorman here at the law school, but that's another story.)

He also explains why he uses "folks" so much:

. . . if you call them "folks" instead [of "jerkface"], you still don't have to learn their names, but at least you can instill loyalty.

[Voronwë the Faithful]

Now that the election is past, Pres. Obama gets to turn back to the hard work of governing, with the so-called fiscal cliff first on his agenda. He addressed the question today, indicating that he was open to compromise, but at the same drawing a pretty explicit line in the sand about including higher taxes for the wealthy in a deficit reduction plan:

"This was a central question during the election," Obama said in his first postelection comments on the economy. "The majority of Americans agree with my approach."

The president, speaking in the White House East Room, said he wasn't wedded to every detail of the plans he outlined during the election, adding, "I'm open to compromise." But he offered no indication that he was willing to back down on his insistence that the wealthy pay more.

At the same time, Speaker John Boehner continues to maintain a hardline on not raising taxes on the wealthy. Still, I'm going to go out a limb and say that this time the president is going to get the better of the debate, probably with some face-saving formula that allows revenue from the highest earners to increase without specifically raising their tax rates. We'll see.

Obama: Americans Agree with My Approach on Deficit

[Voronwë the Faithful]

I split off the discussion about CIA Director General David Patraeus' resignation to a separate thread.

[River]

Cool. If I'd thought about it for two seconds I probably would've started one.