Tag Archives: law

The Next President: Immigration Rewound

Immigration is one of the six focus issues that the next chapter is tracking in this year’s presidential election. The political climate that has prevailed in Washington since the failure of the bipartisan Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), approved by the Senate in 2013, has left millions of undocumented immigrants in limbo, subject to deportation, exploitation and discrimination, and has left the nation locked in a perverse immigration paradigm that is inadequate, unjust and out-of-date.

Hillary Clinton and Bernie Sanders are saying pretty much the same thing regarding the immigration mess. They quibble about voting records—who voted for what bill in the past—but these quibbles, taken out of context of the reasons for particular votes, do not reveal substantial differences. Clinton, however, has more clearly stated her position.

At the March 9 debate in Miami she said: “Of the people, the undocumented people living in our country, I do not want to see them deported. I want to see them on a path to citizenship. That is exactly what I will do.” She promised to introduce comprehensive immigration reform with a path to citizenship in the first 100 days of her presidency. She rejected border security concerns as an excuse for failure to move forward with reform of the immigration laws: “Everybody that I know has looked at it said, okay, we have a secure border. There’s no need for this rhetoric and demagoguery that still is carried out on the Republican side. You’ve run out of excuses. Let’s move to comprehensive immigration reform with a path to citizenship.”

On the Republican side, the contest between the frontrunners appears to be about who can say the harshest words about immigrants who are in this country illegally. Donald Trump has promised to create a “massive deportation force” that would be mobilized to “humanely” deport 11 million undocumented immigrants.

Ted Cruz “absolutely” agrees with Trump that undocumented immigrants must be deported, but he distinguishes himself from Trump by declaring his opposition to ever allowing the deportees to come back into the country legally and become citizens.

John Kasich—the only Republican candidate remotely in touch with the real world—does not support mass deportation of undocumented migrants. He says that the US needs to secure the border and create a guest-worker program. Kasich does not support a path to citizenship, but he has said that there should be a pathway to “legal status.”

Current polling places Trump in first place in the Republican race with 43%, Cruz at 30% and Kasich at 19%. While Kasich is far behind Trump and Cruz in the Republican race for the nomination, his position is consistent with a majority of Republicans (66%), who, according to a Pew Research poll conducted in September 2015, favor allowing undocumented immigrants to stay in the U.S. if they meet certain requirements. The poll found that 74% of the public as a whole share the view that there should be a way for these immigrants to stay in the country legally (and 47% favor a path to citizenship).

Readers of the next chapter will already be aware of the author’s perspective. The law must change someday. It is wrong—immoral even—to punish people whose undocumented status was created by the past failures of Congress to legislate responsibly, with some understanding of the real economic drivers that lured immigrant workers into the country. For too many years, Congress has failed to make legal immigration a realistic possibility for those workers and their families. If the politics of Congressional action now require that some penalty be meted out to the undocumented immigrants, then the penalty should at least be proportional to their offense.

The voters have a clear choice between the Democrats and the Republicans. The likely Republican nominee would punish and deport undocumented migrants while spending even more taxpayer dollars on fortifying the border with Mexico and increasing the profits of private detention facilities. In sharp contrast, the Democratic nominee would propose reform of immigration laws (probably along the lines of the 2013 Senate bill) and would seek an end to the undocumented status of millions of immigrants already living in this country.


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Why I Am Not a Republican

Article II, Section 2, of the Constitution declares that the President of the United States “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” Barely ten days after the death of Justice Antonin Scalia, all of the Republican members of the Senate Judiciary Committee have signed a letter stating their intention to “withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy.” Claiming the “necessity to protect the will of the American people,” the Republicans stated that the Judiciary Committee “will not hold any hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.”

Although the Republican members of the Judiciary Committee rely solely on Article II, Section 2, as their authority to withhold consent, there is no language in the constitution that authorizes the Senate itself to refuse to consider the president’s nominee or to withhold both advice and consent. In spite of their Article VI oath to support the constitution, these senators are shirking their duty under the constitution to consider the president’s (as-yet unnamed) nominee. Justice Scalia, revered as a constitutional originalist, must be rolling in his grave.

There is no legitimate advice that can be given by the Senate without full and fair consideration of the qualifications of a nominee. There is no meaningful consent—or withholding of consent—to appointment of a nominee by a Senate that deliberately chooses to dwell in ignorance of the knowledge and experience of the person to whom the Senate’s consent will be given or denied. Sticking their fingers in their ears and squeezing shut their eyes may be a political strategy of some mindless sort, although it might well be considered “disorderly Behaviour” and merit expulsion under Article I, Section 5.

The Republicans’ litmus test is that a nominee must not be selected by the current president. To justify this absurdity, the Republicans must amend the constitution on the fly. The president shall “hold his Office during the Term of four Years,” except with respect to nominations for Judges of the supreme Court, in which case, the president’s term shall be only three years (Article II, Section 1, as amended). The president “shall nominate, and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court,” unless a majority of senators be not of the same political faction as the president, in which case, the Senate may disregard any such nominee (Article II, Section 2, as amended). “The Senators…shall be bound by Oath or Affirmation, to support this Constitution,” except those Senators who be not of the same political faction as the president, in which case, such Senators may support this Constitution when convenient to their political purposes (Article VI, as amended).

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