Luego del ataque terrorista a una revista satírica en Francia, el conductor de Fox,Eric Bolling,hizo un llamado al Departamento Policial de Nueva York (NYPD,por sus siglas en inglés) para que lleve a cabo más prácticas de detención y registro por medio de etiquetamiento racial.Sin embargo, lamanera en la que caracterizó la legalidad y constitucionalidad de este estilo de ejercer la vigilancia policial - basado en raza - no representa correctamente estas prácticas.
El 7 de enero, enmascarados armados atacaron las oficinas centrales de Charlie Hebdo, una revista semanal francesa que había publicado caricaturas del Profeta Muhammad. Los medios conservadores rápidamente politizaron el ataque y lo describieron como un argumento a favor de la práctica de tácticas policiales basadas en raza dentro de los EE.UU., incluso de aquellas que prohíbe la legislación federal o la Constitución de EE.UU. En la edición del 7 de enero del programa Fox & Friends, la co-presentadora Elisabeth Hasselbeck sugirió que los oficiales del NYPD deberían estar autorizados a enfocarse en comunidades particulares sin temor a ser pintados "con un brochazo racista." Hasselbeck también sugirió que el Alcalde de Nueva York Bill de Blasio era culpable de bajarle la moral al NYPD y que había puesto en riesgo la seguridad al exigirle a la policía que pusiera un alto a prácticas indebidas de etiquetamiento racial.
Tal y como ha sido la costumbre de los medios conservadores en el pasado, Hasselback omitió reconocer que las prácticas policiales deben pasar un umbral de constitucionalidad independientemente de su supuesta eficacia para imponer el "orden."
Esta narrativa continuó en la edición del 7 de enero de Outnumbered, en la que el conductor de Fox Eric Bolling se incorporó al panel para alegar los neoyorquinos deben estar furiosos con de Blasio por sus esfuerzos para eliminar la inconstitucional práctica de detención-y-registro y reducir el etiquetamiento racial. Bolling argumentó que la policía ha usado el etiquetamiento racial "de maneras muy efectivas por mucho tiempo" para enfocarse en personas que son "el tipo de sujeto que ya lo ha hecho antes." Bolling continúo para preguntarse en voz alta "¿Cómo es que etiquetar se volvió a) no ético, b) ilegal? Ha sido a lo largo de la historia la herramienta más efectiva para el mantenimiento del orden." La co-presentadora de Outnumbered Andrea Tantaros coincidió con Bolling en que "alcaldes de izquierda como de Blasio" y la administración Obama "nos han quitado esas herramientas en el momento en que más las necesitamos" y argumentó que "tener a las mezquitas como objetivo" era "crucial" para descubrir actividades terroristas:
Many of the same right-wing media myths about legal issues that dominated coverage in 2014 will continue to make headlines in the new year. Here are some of the worst that will make a comeback in 2015.
Rarer than being struck and killed by lightning and far less common than UFO sightings, 31 out of one billion votes cast since 2000 was the number of credible allegations of in-person voter fraud that law professor Justin Levitt found nationwide in a 2014 report. But in the face of these findings and a constant parade of similar evidence, this phantom menace nevertheless was the bogeyman that right-wing media incessantly invoked in 2014 to justify their increasingly hostile assault on voting rights.
From strict voter ID to voter purges to Jim Crow-era "literacy tests," right-wing media championed unnecessary and redundant voting restrictions that have a disproportionately disenfranchising effect on Democratic voters of color. Despite criticism from leading conservative figures and smackdowns from federal and state courts, nothing seemed to dissuade right-wing media from twisting the truth and deceiving their audience to support a so-called solution to a virtually non-existent problem.
With a fix to the damage the conservative justices caused to the Voting Rights Act of 1965 still blocked in Congress, the misinformation is likely to only get worse, as legal challenges to the new wave of Republican-sponsored voting restrictions race to the Supreme Court and the 2016 presidential election cycle kicks into gear.
Media figures are criticizing President Obama for the current diplomatic re-engagement with Cuba by falsely suggesting that taking executive action to ease some travel and trade restrictions is legally questionable. In reality, the embargo is a result of decades of executive actions under both Republican and Democratic administrations, and Congress has explicitly reaffirmed executive discretion of the type the president is taking to modify U.S. relations with Cuba.
Fox News host Heather Nauert is calling a bizarre federal court opinion that found President Obama's executive action on immigration unconstitutional a "pretty simple" decision, despite the fact that even conservative legal experts have called it a stretch.
On the December 17 edition of Happening Now, Nauert turned to legal experts Robert Bianchi and Brian Claypool to discuss Judge Arthur Schwab's lower court ruling that, surprisingly, evaluated the constitutionality of the president's recent decision to exercise prosecutorial discretion and defer deportation for certain undocumented immigrants. Both Bianchi and Claypool explained that the judge's ruling had "no legal significance" and "doesn't make sense," but Nauert disagreed. Other conservative legal experts are also questioning how the judge came to this conclusion on an unrelated matter of civil immigration law, given the fact that neither party in this criminal case contested the constitutionality of Obama's executive order.
Although Nauert admitted that she is "not a lawyer," she nevertheless argued that the judge's decision "seems pretty simple":
But the ruling from Judge Schwab, who has seen his fair share of controversy with respect to his legal judgment since being appointed to the bench, wasn't quite as "simple" as Nauert insisted.
Legal experts across the political spectrum agree that the president has broad authority to exercise prosecutorial discretion when it comes to deportation proceedings, which the Supreme Court affirmed as recently as 2012. Despite right-wing media's unwillingness to accept the idea that Obama's order is lawful, immigration experts have noted that the president is not only acting "within the legal authority of the executive branch of the government of the United States" but is also authorized by federal statute to provide temporary administrative relief of this type, as presidents of both parties have done for decades.
Moreover, according to Jonathan Adler, a law professor and contributor for The Washington Post's libertarian Volokh Conspiracy blog, Judge Schwab overstepped his own authority in ruling on the constitutionality of Obama's executive order. As Adler explained, "it is quite unusual for a district court to reach this sort of constitutional issue in this sort of case":
Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President's actions. Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order. That is, the issue was not initially raised by the defendant in his own defense. As a result of the court's decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy.
On the merits, I understand the concerns that motivate Judge Schwab's reasoning, but I am not persuaded. First, it is important to note that the executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades. Work permits have been issued in conjunction with deferred action for at least forty years. President Obama's actions are broader in scope, but not clearly different in kind from what his predecessors have done and to which Congress has acquiesced.
Adler's conservative colleagues at the Volokh Conspiracy agreed with this assessment, with law professors Ilya Somin and Orin Kerr calling it "poorly reasoned" with "serious flaws," and "exceedingly strange," respectively. Somin elaborated on how radical the opinion is, noting that "[i]f the Supreme Court were to adopt Judge Schwab's reasoning, federal law enforcement agencies would be barred from issuing general systematic guidelines about how their officials should exercise prosecutorial discretion. The exercise of discretion would then become arbitrary and capricious. Alternatively, perhaps they could still follow systematic policies, so long as those policies were not formally declared and announced to the public, as the president's order was. Neither possibility is particularly attractive, and neither is required by the Constitution."
On the other hand, Judge Schwab does have the support of Fox News host Sean Hannity, who crowed that the opinion "could've been written by me."
After relentlessly promoting several right-wing legal challenges to the Affordable Care Act (ACA) for over a year, The Wall Street Journal seems to have just now realized that the cases' potential to deny affordable health care coverage to millions of Americans is a catastrophe for the GOP -- even as it continues to downplay the human costs.
On November 7, the Supreme Court announced it would hear King v. Burwell, a lawsuit challenging the legality of the tax subsidies that the IRS provides to consumers who purchase health insurance over the federal exchange. The plaintiffs in King argue that, because one section of the ACA states that subsidies are available to consumers who enrolled "through an Exchange established by the State," the federal government isn't allowed to offer credits to people who live in states that refused to set up their own insurance exchanges.
This extremely literal reading of the ACA ignores other parts of the law that indicate the exact opposite and the overall context of the bill as well as the legislative history of its passage, but conservative media have nevertheless been boosters for the challenge. The Journal has been particularly supportive of King and related cases, suggesting that it "ought to be a straightforward matter of statutory construction" to rule in favor of the challengers. The Journal has rarely, if ever, acknowledged the human cost that would come with a Supreme Court decision striking down the availability of tax subsidies -- but in a recent editorial, the Journal seems to have discovered the devastating cost of its anti-ACA advocacy, at least for Republicans:
The time to define a strategy is soon, as King v. Burwell will be heard in March with a ruling likely in June. As a matter of ordinary statutory construction, the Court should find that when the law limited subsidies to insurance exchanges established by states, that does not include the 36 states where the feds run exchanges.
But in that event one result would be an immediate refugee crisis. Of the 5.4 million consumers on federal exchanges, some 87% drew subsidies in 2014, according to a Rand Corporation analysis.
In the GOP debate about how to respond, one side would prefer to wait for the judicial rapture to arrive. ObamaCare has never been popular, they argue, and if the subsidy foundation of the law is undermined, the rest will collapse of its own weight. And because ObamaCare's mandates and taxes are conditioned on the subsidies, more people will be helped than harmed if they are withdrawn.
This group is right about ObamaCare in the abstract, but the Treasury must comply with court orders 25 days after they're issued and such an abrupt policy shift will be a mess. The 17% of U.S. GDP that is health care has spent five years reorganizing to accommodate ObamaCare's dictates, and the watch-it-burn caucus is underestimating the economic, political and media blowback.
The White House could have avoided the problem by obeying its own law and not passing out illegal subsidies, but the public may not notice the difference once the press corps discovers a cancer patient or two who can't afford her ObamaCare plan without taxpayer support. This threatens to replay the "if you like your doctor, you can keep your doctor" controversy in reverse, with Republicans accused of denying care to the sick.
Conservative media outlets both nationally and in California are campaigning against Gov. Jerry Brown's nominees for the state judiciary, attacking their political leanings and complaining about their "race, gender, or sexual orientation," in a baseless effort to suggest the nominees are unqualified and selected "strictly for reasons of affirmative action."
The recent round of attacks were given a national platform in a November 26 Wall Street Journal editorial, which, while questioning the lack of judicial experience of some of Brown's nominees, largely focused on whether the ideological leanings of Brown's nominees are similar to his own. The California Supreme Court was previously dominated by judges appointed under Republican governors, but Brown's picks, Journal columnist Allysia Finley complained, "have tilted the court left."
California media were more specific, and honed in on whether the nominees were from "the right racial groups," as San Francisco Chronicle editorial writer Marshall Kilduff put it. Ignoring the fact that multiple high court jurists had not previously served as judges before their appointments (such as current Supreme Court Justice Elena Kagan and former Chief Justice and California governor Earl Warren), Kilduff also criticized Brown's nominees for a lack of experience with "sleepy jurors." But as The Los Angeles Times reported, Brown has no flat rule against trial or appellate experience with respect to his nominees -- similar to his choice for the San-Francisco-based appeals court, "Brown's picks for the Los Angeles-based appeals court were all sitting judges, suggesting he considers bench experience valuable."
The criticism of Brown's attempts to diversify the bench got uglier, however, after the Journal weighed in. The Metropolitan News-Enterprise, a Los Angeles legal newspaper, recently ran a column from Roger M. Grace, flatly concluding Brown's nominees were "bereft of credentials," and were "apt to be named ... strictly for reasons of affirmative action":
Surely, race should not be, ever, a factor in choosing judges.
It simply doesn't relate to a person's capacity to serve in a judicial role.
Yet, the reality is that to Jerry Brown, being a non-white is a huge plus for a seeker of a judgeship.
And so we return to young [Lamar Baker, former US Deputy Assistant Attorney General]. He is almost certain to be appointed to the state's intermediate appellate court--and would probably be under consideration for the Supreme Court were there any more vacancies. He, like [former U.S. deputy attorney general and current California Supreme Court nominee Leondra] Kruger, is an African American.
He has all the qualities that Brown is looking for in a justice.
And what he lacks -- the know-how and wisdom that can only be derived from experience -- is of no concern to the man once known as "Governor Moonbeam."
He's not called that anymore. But the lunar influences on him are as strong as ever they were.
Also apt to be named to the appeals court, strictly for reasons of affirmative action, is Los Angeles Superior Court Judge Luis Lavin. He's openly gay. That, and his law degree from Harvard, are probably enough to cinch an appointment -- unless the governor views him as being too old (he's 55) or holds against him his judicial experience.
From what I've seen, Lavin is a result-oriented jurist, lacking in intellectual honesty. But that sort of thing would, of course, be of no interest to Brown.
The Supreme Court will soon hear King v. Burwell, a challenge to tax credits for consumers who live in states that refused to set up their own health care exchanges under the Affordable Care Act (ACA) and instead relied on the federal version. Right-wing media have repeatedly insisted that the ACA can only have been written to deny Americans affordable health insurance, but experts call this argument "political activism masquerading as statutory restraint."
The Washington Post editorial board is contesting the Obama administration's claim that his recent executive action on immigration is similar in scope to former President George H.W. Bush's temporary administrative relief for undocumented immigrants in 1990, which reportedly affected 1.5 million family members of legalization applicants. Calling the White House's 1.5 million figure "indefensible," the editorial also repeated the accusations of its fact checker, Glenn Kessler, who previously insisted that the figure is inflated despite contemporaneous congressional testimony to the contrary.
But now a leading immigration expert says the Post is "doubling down on a grievous error."
According to Charles Kamasaki, Executive Vice President of the National Council of La Raza (NCLR), author of a forthcoming book on the Immigration Reform and Control Act (IRCA) of 1986 and its subsequent effects, and one of the leading experts on immigration law and policy in the country, the White House's citation of the 1.5 million estimate of those who stood to benefit from Bush's 1990 action is "completely defensible."
In a December 4 letter published on the NCLR website, Kamasaki pointed out numerous mistakes in both the substance and reasoning in both the Post's editorial and fact check, and pointed out that a "'quick and dirty' analysis" that encompasses "Kessler's own reporting" demonstrates that the White House's "1.5 million estimate of ineligible family members of IRCA's legalization applicants is valid on its face":
There's a second way of looking at this issue, which is to take the available data and see whether, independent of take-up rates, the 1.5 million estimate of ineligible family members of IRCA's legalization applicants is valid on its face. A quick analysis suggests it is eminently plausible. First, consider the number of applicants: 3.3 million people applied for IRCA's two main legalization programs, another 40,000 or so for a special Cuban-Haitian program, and perhaps 75,000 for a registry program for those who had entered prior to 1972. So we start with a base of more than 3.4 million applicants.
But these were not the only applicants potentially covered by "family fairness" in 1990. Under two major national class action lawsuits, hundreds of thousands of people claimed they had been unfairly denied the opportunity to apply for legalization because of improper eligibility rules, inaccurate information, or other reasons. The plaintiffs largely won on the merits in the lower courts, although appeals courts later denied all but a few thousand the opportunity to apply. The key point, however, is that as of 1990, when the Bush policy was announced, this litigation was still pending, and thus several hundred thousand of these class members technically were still potential applicants. Adding these potential applicants to those who had applied brings the universe of total actual and potential IRCA applicants whose ineligible family members might've been covered by family fairness into the four million range.
- Kessler's own reporting shows that 42% of IRCA applicants were married. Multiplying four million by 42% produces a total of 1.7 million spouses. But many, arguably half, likely qualified for legalization themselves, bringing the number of spouses ineligible for legalization to perhaps 840,000.
- How many kids might've been covered? Here we have very good data on the contemporary undocumented population, which we might apply to 1986-1990 in a backward fashion. The Migration Policy Institute estimated last year that of the 11 million unauthorized immigrants in the country, there were more than 1.9 million unauthorized youth who were brought to the country by their parents. In other words, about 17% of the current undocumented population is made up of children analogous to those who would have been covered by the Bush policy. Applying this 17% figure to the estimated 5 million undocumented population as of 1986 produces a total of about 850,000 unauthorized children.
- Some number of those were likely older than 21 as of 1990; adjusting for this produces an estimated population of ineligible children of legalization applicants as of 1990 to perhaps 640,000. Still, 840,000 spouses added to 640,000 children equals 1.48 million, very close to the cited 1.5 million estimate.
Based on this "quick and dirty" analysis, there really were close to 1.5 million people eligible for relief in 1990, and it is a completely defensible number.
The Wall Street Journal is attacking the equal employment provision of the Pregnancy Discrimination Act of 1978, claiming that this historic civil rights law's protection is unnecessary since "market forces" will ultimately reduce such workplace discrimination on the basis of sex.
On December 3, the Supreme Court heard oral arguments in Young v. UPS, a pregnancy discrimination case where former UPS driver Peggy Young alleges that her employer failed to treat her equally during her pregnancy. Even though UPS had previously accommodated other drivers who were unable to perform the specific duties required for their jobs, the company refused to reassign Young after her doctor told her she should avoid lifting more than 20 pounds. Because of this unequal treatment, Young is arguing that UPS violated the Pregnancy Discrimination Act, whose statutory text clearly guarantees pregnant workers the right to be "treated the same for all employment-related purposes" as other workers "similar in their ability or inability to work."
The Journal isn't convinced that Young has been discriminated against, however, or if she was, whether she deserved the protection of civil rights law. In a December 2 editorial, the Journal admitted that UPS had "acted like dunderheads" when they refused to accommodate Young's pregnancy and argued that "[s]ympathetic plaintiffs make good headlines, but they often make bad law." The Journal rejected Young's sex discrimination claim, suggesting that UPS's "pregnancy-neutral policies" were sufficient and that Young was asking for "a special accommodation" that her employer shouldn't have to provide.
The editorial went on to criticize Young's decision to sue, suggesting that she should have skipped the lawsuit and let "market forces" correct UPS' "dumb corporate behavior":
Typically, discrimination claims are brought either by showing disparate treatment of an individual or disparate impact on a group based on statistical evidence. Ms. Young took neither path. Her argument is that UPS is liable because it failed to extend a special accommodation beyond the neutral policies that otherwise cover workplace disability.
The effect would expand the boundaries of discrimination law and ramp up penalties for businesses. If Ms. Young's theory succeeds, Title VII would have a third category of discrimination for which employers could be accused of discrimination even if their policies were neutral.
In the real world, most employers aren't in the habit of picking fights with their pregnant employees to make their lives miserable. UPS had accommodated Ms. Young during previous pregnancy-related requests, including rounds of in vitro fertilization. We agree with Ms. Young that UPS managers acted like dunderheads when they sent a longtime employee on unpaid leave, but not being nice enough is not the same as discrimination under the law.
The answer to dumb corporate behavior is market forces, not more legislating through regulation or the courts. UPS has since changed its policy and other companies have been put on notice. We hope the Justices will resist creating a long-term problem to fix a temporary condition.
The Wall Street Journal is misrepresenting the legal justification for President Obama's executive actions on immigration from the Justice Department's Office of Legal Counsel (OLC) -- even falsely claiming that the OLC's opinion does not quote "specific statutory language."
On November 20, Obama announced that he would take executive action on immigration by prioritizing deportations of dangerous undocumented immigrants over the undocumented parents of U.S. citizens or lawful permanent residents who pass a criminal background check and register for temporary administrative relief. Right-wing media were quick to accuse Obama of lawlessness for this deferred action on deportations and to declare his order "unconstitutional," despite the fact that the overwhelming majority of legal experts agree that the president has the authority to exercise this sort of prosecutorial discretion in service of family unification.
The Wall Street Journal was no exception. Before the president issued his executive order, the Journal claimed in a November 16 editorial that the president didn't have the authority to act on immigration because his administration had not yet received a "written legal justification" from the OLC. According to the editorial, the "President should always seek legal justification for controversial actions to ensure that he is on solid constitutional ground" by asking for the OLC's guidance. The Journal ultimately concluded that "[i]t's possible" the Obama administration hadn't "sought an immigration opinion because they suspect there's little chance that even a pliant Office of Legal Counsel could find a legal justification" -- apparently unaware that Obama had already received legal advice from the OLC, Attorney General Eric Holder, and immigration experts before the Journal published its editorial.
As requested, the OLC published its official opinion on Obama's immigration proposal prior to his announcement on November 20. The opinion determined that the president had the authority to prioritize and defer some deportations over others -- but that apparently wasn't enough to appease the Journal. In a November 24 editorial, the Journal criticized the OLC's opinion: "Now that we've studied the legal memo his government used to support his order, his abuse of power looks even worse." But the editorial incorrectly claimed the opinion allowed the president to "rewrite" the law by "exempting whole categories of people and extending federal benefits that they aren't entitled to by statute." Worse, the Journal falsely claimed the memo omitted information that it actually included. From the November 24 editorial:
The problem, as the Justice Department's Office of Legal Counsel (OLC) concedes in the 33-page document, is that "the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite laws to match its policy preferences" or apply "set formulas or bright-line rules." Yet Mr. Obama is making precisely such a rewrite, by exempting whole categories of people and extending federal benefits that they aren't entitled to by statute.
By recognizing that there is no categorical exemption, the OLC is implicitly admitting that Mr. Obama is stretching prosecutorial discretion beyond legal norms.
These are the kind of errors that normally scrupulous lawyers make under deadlines or political pressure. The OLC memo reveals that the White House did not submit formal legal questions until Wednesday, Nov. 19, and the OLC drafted the opinion the same day. The details of the new program weren't complete and submitted to the Justice Department until Monday. The OLC published the memo on Thursday, Nov. 20.
We wouldn't be surprised if some West Wing minion read our editorial [from November 16] "The Missing Immigration Memo," panicked, and rushed one out. Mr. Obama's political calculation --in keeping with his lawlessness on health care, drug policy and the rest -- seems to be that he'll dispense with laws or parts of laws that displease him and dare Congress to challenge him. Republicans can and should take the dare.
Rush Limbaugh is continuing his tirade against President Obama's executive order on immigration, which will reportedly defer deportation for the undocumented parents of U.S. citizens and permanent residents. In addition to ignoring legal experts and the historical precedent for this action, Limbaugh also incorrectly described the legal basis for these immigrants' future work permits.
On November 20, the president will announce plans to exercise prosecutorial discretion and take executive action on immigration, a move that could expand the Deferred Action for Childhood Arrivals (DACA) program in addition to preserving families by halting deportations for certain groups of undocumented immigrants. The order is also expected to make clear that those affected will be eligible for work authorization permits. Even though every president since Dwight Eisenhower has taken some kind of executive action on immigration, right-wing media have nonetheless attacked Obama's action as illegal.
Limbaugh has been a vocal opponent of the president's executive order, joining the right-wing media's failed attempt to distinguish Obama's order from similar executive actions taken by Republican presidents like Ronald Reagan and George H.W. Bush. Limbaugh continued to mislead about the order on his November 20 radio show, saying that "there is no way in hell that giving people who are here illegally work permits fits under the rubric of prosecutorial discretion." Even though Limbaugh conceded that "prosecutorial discretion is standard operating procedure, it's been used for centuries," he still concluded that Obama "doesn't have that power" to exercise discretion over deportations because it would "turn [undocumented immigrants] legal":
Right-wing media outlets are trying to draw a distinction between Republican administrations' executive actions on immigration and President Obama's proposed order, claiming that the current president's authority for deferring deportation -- unlike that of his predecessors -- is illegitimate.
On November 20, Obama will reportedly issue an executive order that would suspend deportations for certain classes of undocumented immigrants currently living in the United States. Although the full details of the order aren't yet known, it is expected to focus in part on keeping families together and to provide temporary administrative relief to immigrants who are undocumented but whose children are U.S. citizens or otherwise legally present. There is plenty of legal precedent to support Obama's exercise of prosecutorial discretion to halt some deportation proceedings, and experts from across the political spectrum have pointed out that this sort of executive action has taken place in the past, notably once when Congress failed to pass immigration reform.
Yet right-wing media have nevertheless fearmongered about the legality of Obama's proposed executive action, even though the Associated Press reported that both Ronald Reagan and George H.W. Bush "acted unilaterally on immigration," as have numerous presidents before and since. Despite this Republican precedent, which the American Immigration Council has called a "striking historical parallel," conservative media figures have sought to deny the similarity. Radio host Mark Levin slammed the Associated Press report, saying, "No, Ronald Reagan, no, George H.W. Bush did not do what Obama is about to do," because Reagan was acting in response to the Immigration Reform and Control Act (IRCA), which "Congress passed" and "sent to the president."
National Review Online contributor Mark Krikorian also tried to distinguish Obama's "threatened move" from Reagan and Bush's executive actions, calling the comparison a "nice try." Krikorian went on to argue that Reagan's action "is simply irrelevant to the current case" because it "was a legitimate exercise of prosecutorial discretion shortly after passage of" IRCA. Krikorian also rejected the similarities to George H.W. Bush's immigration order, arguing that it "cannot meaningfully be described as precedent for Obama's scheme" because, among other reasons, Bush's move was a "cleanup measure for the implementation of the once-in-history amnesty that was passed by Congress."
Rush Limbaugh repeated this attack on the November 18 edition of his show, saying that "it's uncanny to me how often the Democrat Party, when they get in a jam and when they know they're doing something that is untoward, when they know they're doing something that's not above board -- like this clearly is not above board -- they go back and they cite Reagan." Later, Limbaugh claimed that "Reagan never took executive action. This is a bold-faced, flat-out lie."
Fox News and ABC News contributor Laura Ingraham has repeatedly urged the Republican party to prioritize the elimination of birthright citizenship, a constitutionally-protected right that cannot be abridged without repealing parts of the 14th Amendment.
The Wall Street Journal is misleading about President Obama's proposed executive action on immigration by suggesting he does not have enough legal authority to support the move.
As The New York Times recently reported, Obama is expected to announce as soon as this week an executive order aimed at improving the nation's immigration system. Although specific details about the order have yet to be disclosed, it is expected in part to build upon the Deferred Action for Childhood Arrivals (DACA) program, which has deferred deportation proceedings for some categories of immigrants. There is plenty of legal precedent and justifications for such a move, and even right-wing media figures like Fox News hosts Bill O'Reilly and Megyn Kelly have admitted that the president has the authority to take action on immigration in this way through the exercise of prosecutorial discretion.
But in a November 16 editorial, the Journal questioned whether Obama had the legal authority to issue his executive order because his administration hadn't yet received "written legal justification" from the Department of Justice's Office of Legal Counsel. The editorial also misrepresented how prosecutorial discretion actually works and ignored the use of similar executive orders on immigration by Republican presidents in the past.
From the editorial:
If the White House press corps wants to keep government honest, here's a question to ask as President Obama prepares to legalize millions of undocumented immigrants by executive order: Has he sought, and does he have, any written legal justification from the Attorney General and the Justice Department's Office of Legal Counsel (OLC) for his actions?
This would be standard operating procedure in any normal Presidency. Attorney General Eric Holder is the executive branch's chief legal officer, and Administrations of both parties typically ask OLC for advice on the parameters of presidential legal authority.
Yet as far as we have seen, Mr. Obama sought no such legal justification in 2012 when he legalized hundreds of thousands of immigrants who were brought to the U.S. illegally as children. The only document we've found in justification is a letter from the Secretary of Homeland Security at the time, Janet Napolitano, to law enforcement agencies citing "the exercise of our prosecutorial discretion." Judging by recent White House leaks, that same flimsy argument will be the basis for legalizing millions more adults.
It's possible Messrs. Obama and Holder haven't sought an immigration opinion because they suspect there's little chance that even a pliant Office of Legal Counsel could find a legal justification. Prosecutorial discretion is a vital legal concept, but it is supposed to be exercised in individual cases, not to justify a refusal to follow the law against entire classes of people.
From the November 17 edition of Courtside Entertainment Group's The Laura Ingraham Show:
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