Posted on 11/22/2014 9:49:22 AM PST by DanMiller
But not only in the ways that most of us anticipated, because He did not issue an executive order.
On November 19th, I wrote an article titled Obama’s Grubering and royal amnesty for illegals. Rather than speculate about what Obama would say in His November 20th address and Royal Decree, also known as executive order, I wrote
After reading and interpreting copies of Obama’s address and His Royal Decree, I will try to analyze His Gruberings.
Like many, I had expected Obama to issue an executive order, in contradiction of His many previous acknowledgments that He lacks the authority to deal with immigration that way.
[youtube https://www.youtube.com/watch?v=lcj4PJUI0II&w=640&h=390]
Obama did not issue an executive order as expected and His November 20th immigration address does not include the phrase "executive order." However, media of all political persuasions, apparently expecting an executive order, used the phrase often and interchangeably with "executive action." Obama's address uses neither phrase.
Facially, the phrases "executive order" and "executive action" seem to mean about the same thing: issuing an executive order is an action taken by the President, so using the phrases interchangeably seems reasonable. However, "executive action" is a term of art and very different from "executive order." Although I practiced administrative law in Washington for more than twenty-five years before retiring in 1996, the differences escaped me until I read and thought about the matter yesterday. Perhaps I can take solace in the statement in the article linked and quoted immediately below to the effect that Obama is the first President in modern history to have used executive actions in lieu of executive orders.
The best explanation of the differences I've been able to find is at U.S. Politics About. The article deals with executive actions on gun control rather than immigration, but the principles are the same,
Executive Actions Versus Executive OrdersExecutive actions are any informal proposals or moves by the president. The term executive action itself is vague and can be used to describe almost anything the president calls on Congress or his administration to do. But most executive actions carry no legal weight. Those that do actually set policy can be invalidated by the courts or undone by legislation passed by Congress. [Emphasis added.]
The terms executive action and executive order are not interchangeable. Executive orders are legally binding and published in the Federal Register, though they also can be reversed by the courts and Congress
A good way to think of executive actions is a wish list of policies the president would like to see enacted. [Emphasis added.]
When Executive Actions Are Used Instead of Executive Orders
Presidents favor the use of nonbinding executive actions when the issue is controversial or sensitive. For example, Obama carefully weighed his use of executive actions on gun violence and decided against issuing legal mandates via executive orders, which would have gone against the legislative intent of Congress and risked enraging lawmakers of both parties. [Emphasis added.]
Use of Executive Actions by Other Presidents
Obama was the first modern president to use executive actions in lieu of executive orders or executive memoranda. [Emphasis added.]
Criticism of Executive Actions
Critics described Obama's use of executive actions as an overreach of his presidential powers and an unconstitutional attempt to bypass the legislative branch of government, even though the most substantial of the executive actions carried no legal weight.
. . . .
But even the Obama White House acknowledged that most of the executive actions carried no legal weight. Here's what the administration said at the time the 23 executive actions [on gun control] were proposed:
"While President Obama will sign 23 Executive Actions today that will help keep our kids safe, he was clear that he cannot and should not act alone: The most important changes depend on Congressional action."
Since Obama's executive action or actions seem not to have been published, it is not clear which Federal agencies He has asked to do what. However, the Department of Homeland Security (DHS) released an "explanation" of what it intended to do. It used much of the phraseology Obama used in His November 20th address. On November 19th, the Department of Justice (DOJ) issued an opinion concerning a draft of DHS' plan to prioritize the deportation of various classes of illegal immigrants. The DOJ found most of what DHS contemplated to be lawful, but stated that "the proposed deferred action program for parents of DACA [Deferred Action on Childhood Arrivals] recipients would not be permissible." The distinctions as explained by the DOJ are complicated. However, this is what Obama said on November 20th:
So we’re going to offer the following deal: If you’ve with been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is. [Emphasis added.]
That does not seem to exclude the parents of Deferred Action on Childhood Arrival recipients. New Federal regulations may (or may not) draw the distinction noted by the DOJ.
Federal regulations
The Administrative Procedure Act,
enacted June 11, 1946, is the United States federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review agency decisions. It is one of the most important pieces of United States administrative law. The Act became law in 1946.The APA applies to both the federal executive departments and the independent agencies. U.S. Senator Pat McCarran called the APA "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal government agencies. The text of the APA can be found under Title 5 of the United States Code, beginning at Section 500.
The Act establishes rule making procedures and generally, but not always, requires that "notice and comment" procedures be used before rules are adopted.
Rulemaking processes are generally designed to ensure thatThe public is informed of proposed rules before they take effect;
The public can comment on the proposed rules and provide additional data to the agency;
The public can access the rulemaking record and analyse the data and analysis behind a proposed rule;
The agency analyses and responds to the public's comments;
The agency creates a permanent record of its analysis and the process;
The agency's actions can be reviewed by a judge or others to ensure the correct process was followed.
However, Section 553 of the Act states,
(a) This section applies, according to the provisions thereof, except to the extent that there is involved -(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. [Emphasis added.]
We should eventually learn which, if any, new immigration regulations issued in accordance with Obama's recent executive action will be categorized as "relating to agency management" and therefore not made subjects of the notice and comment procedures.
Obama is a master of grubering and he grubered immigration reform masterfully.
Here are two of many examples. According to a Washington Post fact check,
President Barack Obama made some notable omissions in his remarks about the unilateral actions he's taking on immigration.A look at his statements Thursday and how they compare with the facts:
OBAMA: "It does not grant citizenship, or the right to stay here permanently, or offer the same benefits that citizens receive. Only Congress can do that. All we're saying is we're not going to deport you."
THE FACTS: He's saying, and doing, more than that. The changes also will make those covered eligible for work permits, allowing them to be employed in the country legally and compete with citizens and legal residents for better-paying jobs.
That article goes on at length. Daniel Horowitz, writing at Conservative Review, identified the Top 10 Lies from Obama's Nullification Speech. Others have also made similarly valid points about the bovine fecal matter which permeates His address.
However, Obama's grubering went beyond simply misstating and glossing over facts. By leaving the impression that He was issuing an executive order -- rather than an executive action -- He misled the media as well as many others as to how He intends to proceed.
Michael Gerson wrote at the Washington Post,
There are any number of marvelous things one might do as president, if Congress were not such a checked and balanced mess. But future presidents now have a new method at their disposal: Declare a long-running debate to be a national emergency. Challenge Congress, under threat of unilateral executive action, to legislate on the topic before your term runs out. And when lawmakers refuse, act with the most expansive definition of presidential power. [Emphasis added.]. . . .
By crossing this particular Rubicon, Obama has given up on politics, which is, from one perspective, understandable. He doesn’t do it well. He has always viewed the political process as sullied, compared with the reasonableness of his policy insights. In the aftermath of his party’s midterm defeat, he diagnosed a problem of salesmanship. “It’s not enough just to build a better mousetrap,” he said. “People don’t automatically come beating to your door. We’ve got to sell it.” [Emphasis added.]
. . . .
[T]here is a cost. He has taken an important national discussion and turned it into just another controversial Obama initiative. He has resolved one portion of the immigration debate while poisoning the possibility of broader reform and politically discrediting Republicans who might be open to it. [Emphasis added.]
Might Obama have spoken as He did purposely to throw the Republican opposition into a dither and thence into disfavor, believing that by misleading them into thinking that He was doing more than He actually did they would get angry, excited and make public statements that would turn out to have been brash as well as incorrect? Might He have believed that, after being shown to be brash and wrong, they would fall into line with His immigration program or at least suffer severely adverse political consequences for failing to do so?
According to Fox News, the Republicans were ready before November 20th to do whatever it might take to halt Obama's immigration plan.
Obama’s move sparked a number of comparisons with monarchies, the Revolutionary War, and tyranny, with Sen. Chuck Grassley, R-Iowa, going so far as to say that not even King George III had such power over the American colonists in 1776. “It is no exaggeration to say the freedom of the American people is at stake,” he said.Rep. Randy Forbes, R-Va., predicted doom. “We’re going to be headed for a constitutional crisis that the president’s making,” he told Lou Dobbs on the Fox Business Network on Wednesday. “He’s going to poison this well so much that we’re not going to be able to do the fixes that we really need to do [to] reform the immigration system.”
An article at the North American Law Center asked, "Does Barack Hussein Obama have any constitutional authority to alter U.S. Immigration and Naturalization laws or rules via Executive Order?" and explained why He does not. It was stated,
The power of Executive Orders are limited to items under the legal purview of the Executive Branch and they are limited to “executing the laws” established by Congress. Executive powers do not extend to law-making authority, nor do they extend to subverting or circumventing the laws of our land.True enough, but Obama did not issue an executive order.
What can and should the Congress do now?
It would be premature to file a lawsuit now since -- in addition to misleading, obfuscating and otherwise lying about facts -- Obama merely told administrative agencies to consider promulgating rules that He wants adopted. He can do that.
When the agencies publish proposed rules (other than those "relating to agency management or personnel"), comments and reply comments can and should be filed. Suit might possibly be filed seeking to have the adoption of new proposed rules delayed pending judicial review. More likely, however, their adoption cannot be prevented and suits seeking to prevent enforcement will have to wait until after the new rules have been adopted.
Of greatest importance, the present Congress should refuse to pass any long term omnibus appropriations bill. A short term omnibus bill, granting spending authority -- through February or March -- seems reasonable. Then, when it is clear what the various administrative agencies propose to do, the next Congress should pass separate appropriations bills for each of those agencies, specifically not funding any (specified) actions deemed undesirable. Any long term omnibus appropriations bill passed by the next Congress needs specific language prohibiting the expenditure of any funds by or on behalf of those agencies not specifically authorized in appropriations bills for those agencies. Fund shifting to those agencies from from other agencies also needs to be prohibited.
These are just my first impressions. There will likely be much more that the next Congress can and should do, but the current Congress will need to pass a short term omnibus appropriations bill as suggested above if the next Congress is to take effective action. There should be ample time between now and January to come up with more ideas.
IS that akin to YADA YADA YADA????????????????
bookmark
Obama is to Grubering as Kleenex is to tissue.
Being Borked, Nifonged and now Grubered.
Like minds ping
Gruber will be Fuddy-Duddied.
Thanks for the ping. This is a good catch.
Don’t forget Lewinskied
Dan, you should read Hostage’s size-up the other day. I was at work and couldn’t bookmark the thread but you two are definitely on the same page.
Ah yes.
I remember when Lenny on Law and Ordered mentioned that some guy was off getting Lewenskied.
I'd put "getting Hillaried" on the list but which heinous act would you pick?
To get “Hillaried” would be to be left by your country to die. You know, at this point, what difference does it make?
Jonathan Grubber
Grubber of the Gangreen Gang
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