I disagree with Hightower.

What you will find here is: a centrist's view of current events;
a collection of thoughts, arguments, and observations
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Monday, June 18, 2012

he shall take Care that the Laws be faithfully executed

The title of this post is from Section 3 of Article II of the constitution which lists the presidents powers and responsibilities.

From a story in the Washington Post whose title is:   U.S. will stop deporting some illegal immigrants who came here as children
On Friday, Obama seemed to find a middle ground, granting a two-year reprieve from deportation for certain eligible immigrants but not granting them legal status.
“These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag,” Obama said during an afternoon Rose Garden appearance. “They are Americans in their heart, in their minds, in every single way but one: on paper.”
You will probably hear a lot about this from folks like Charles Krauthammer (who calls it rampant lawlessness) and those who wonder:  Since when does the president have the discretion to enforce or not enforce laws?

I have several thoughts about this that may appear confusing.  Confusion is frequently the centrist's lot.

1.  The "every way but on paper" is a pretty sad statement coming from a lawyer.
The "rules" written down on paper is what the law is all about.  That goes back to the 12 tablets on which the law of early Rome was written on so that the people would know what the law was and would not be abused.
2.  It seems like a pretty cynical maneuver in search of votes.  (As someone said: search, release, vote.)

But, on the other hand, if you back up into Article II Section 2 you will also find that the president:
3.  "shall have Power to Grant Reprieves and Pardons for Offenses against the United States"

Now I don't know if that is dispositive in this case, but it sure seems like it is enough to say that Krauthammer ought to dial it back a notch or two.


  1. I really fail to see the "sadness" of the statement. It does not appear that he was making a legal argument as an officer of the court. I think lawyers should be allowed to say unlawyerly stuff, especially when they are speaking about what should be done (in his or her opinion of course) first, and whether or not it falls within that sometimes foggy concept of legaility second. What Obama said is most certainly true. And while what's written on paper may very well be, as you say, what the law is all about, if being American is only about what's on paper then it is a little justified pride that we can take in being Americans.

    I personally don't understand why, if he was going to this length with the executive order, knowing that it leaves his critics plenty of "he's behaving like a dictator" fodder, he limited it to a 2 year reprieve. I would tend to criticize this move as totally political in nature for that reason if nothing else. Why not go for the big stroke if he "shall have Power to Grant Reprieves and Pardons for Offenses against the United States" and he is truly concerned about these unfortunate people's uncertain future and status?

    I saw a blurb, although I did not read the entire story, about one of Obama's former law professors advocating that Obama be defeated in the election because he has not advanced the progressive agenda at all since becoming President. Wow, still grading his performance long, long, after graduation, and not in a good way. Or maybe this is more political showmanship. Perhaps some plan hatched under a rock intended for this to make some on the fence think, "Gee if that socialist professor thinks Obama is not progressive enough maybe he's not that liberal afterall". I just thought it seemed odd. "Obama hasn't advanced the progressive agenda so let's elect Romney." Oooookay. That would be like saying Romney's not conservative enough so let's elect Obama. Yeah....that's the ticket.

  2. WRT the sadness statement. I agree with you that a lawyer should be able to say unlawyerly things in a personal context. The point here is that the president of the United States was making a public statement explaining why he had taken an action as the chief executive of the US. That is a long way from a private statement of personal opinion.

    As to why he did not issue a full pardon I expect the calculation was that a full pardon would have cost more votes than it would have gained. I agree with that calculation.

  3. I am not sure why you would choose to take serious issue with the way he said what he said. It is not nearly as important as what he did. What he did I agree with as far as it goes. But I am getting pretty tired of our leaders making all of our new laws temporary in an attempt not to step on as many toes as a permanent law would. It just adds to the uncertainty of the future that everyone agrees is a very serious inhibitor to progress on several different fronts where progress is desperately needed.

    I guess I agree that the 2 year limit was a calculation but it seems to me that voters who are for the amnesty would have been happier with something longterm and those who are unhappy with it will not be Obama voters anyway. So, I'm not sure that calculation is correct.

    1. How things are said (justified) - The infield fly rule penalizes the batter for previous actions by other team members. Still, it would be silly for an umpire to say “it’s a hit everywhere except on paper”.

    2. The difference between the penalty suffered by a batter with regard to the infield fly rule in a baseball game and the penalty of being deported away from everything one knows to what is a foreign country is really not comparable in my estimation. However, I do get your point.

  4. A) This is perhaps the essential point on which we disagree. I think it is very important the reason that a president gives for his actions. [I seem to remember the liberals going berserk over the 'WMD in Iraq'?] In this case I would not characterize it as "the way he said it". What I object to is his reasoning, his treatment of the law as if it is just a technicality. I think that that is extremely dangerous.
    [There is another recent example. His claim that the targets of his targeted killings of terrorists a) have full due process of law rights and b) those rights are satisfactorily met by a conference within the executive. I disagree with a), but leave that aside. Assuming a) then b) is absurd. ]

    B) I am very unhappy with it and I am, or at least was last time, an Obama voter .

  5. I borrow from the movie "Paper Chase" from many years ago, which borrowed from Charles Dickens from many many more years ago. The truth of it stands today. “If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

    Charles Dickens' writings helped to change many social injustices of his time, not by pointing out what the law is, which any person that can read and regurgitate back what they've read can do quite well, but how the law could be more humane and compassionate. I like, no, I respect, humane and compassionate much more than any legalistic reasoning. The pursuit of humane and compassionate calls for a higher level of thinking than strict law enforcement. If that is not what the President was talking about then I greatly misunderstood.

    The President said what he thought should be done and why he thought it should be done so he took action to make it so. You pointed out in your original post that he probably has the Presidential powers to do what he did. So I am still slightly confused about what your problem with it is. You seem to be inferring, from what he said, a disregard for the law and his office that I just don't agree with.

    As I posted, I have my own problems with the actual order and its temporary nature, but not the reasoning for it. You, on the other hand, have a problem with the reasoning he gave, but, if I interpret correctly, not the actual content.

    1. I think our difference is about whether the rationale for a presidential action is important.

      If I understand you, you believe that the action itself is everything and the rationale is not important.

      I believe that the rationale is also important.

      With respect to the value of the law, I will "call" your "Paper Chase" with "A Man for all Seasons". Sir Thomas More is discussing the value of the law with his son in law . The younger man is hot to get at evil represented by the devil and was expressing his contempt for the law that was similar to your Mr. Bumble's. He swears that he would "tear down all of the laws of the land to get at the devil".

      Sir Thomas More then asks him, "And then, when the Devil turned on you, where would you hide with the laws all torn down?"

  6. Also, I intended to address the "WMD in Iraq" comparison (I started to type "crack" because of the rhyme, but it really wasn't a crack in the strictest sense of the word's meaning...or was it). I don't think it was just liberals who had a problem with it. The President said he was declaring war against Iraq because they had WMD. Only the most extreme liberal positions were against the attack if it involved WMD in the hands of Saddam Hussein. Witness the Congressional support. But, apparently there were NO WMD in Iraq. That is either a huge mistake or a huge lie. Either way it is, to one degree or another, a failure in leadership. We continue to pay for it today. A HUGE woops! There is no comparison.

    It would be a solid comparison, perhaps, if it turns out that the people who Obama's executive order allows to stay (temporarily) drag us into a war that costs a huge amount in terms of American lives and treasure and drags out over years and years. If and when that happens I would agree with your comparison. But right now that is apples and oranges...or better, grapes and watermelons.

    And, I do agree with your parenthetic statement. From where I stand the President's reasoning is just wrong minded with regard to who we hope we are as Americans and what we hope to represent in the world. Again, from where I am standing...

    However, we are in a declared war on those who want to destroy at least some of us and all of our way of life. I would find it much easier, as the President, to show compassion and humanity toward undocumented folks who are in America illegaly, but apparently love America at least as much as I, if not more, than I could those who want to do us and our way of life harm and are clearly planning to take action in that vein any chance they get. Being the "decider" in America has got to be one of the hardest jobs ever for anyone with a soul. I don't care what party you belong to.

    I can't defend this disturbing policy, but I recognize that there is much at stake and I don't have all of the facts, and, most especially, I don't have the responsibility. That makes it easy for me to oppose with righteous indignation and I take full advantage of that.

    1. 1. You are right the folks who were troubled by the lack of WMD included a lot of non liberals.
      2. It was not a comparison. What was offered was an example of a presidential action in which the rationale was important. I wanted one which I was confident that you would agree that the rationale was quite important. From your comments I think that you do agree that Bush's rationale - that Iraq had WMD - was a pretty important fact about that presidential decision.

  7. If our disagreement is about whether the rationale for a presidential action is important then we don't have a disagreement.

    I believe our disagreement is over whether a president's rationale for actions should be rightly limited to ones that are supported by current laws, though those laws are shown to
    be unworkable, and even problematic, in and of themselves. Should the president's ability to work to change unworkable laws be limited to rationales that are supported by the laws that have shown themselves to be unworkable? I would say "of course not". If the only reason we are doing things a certain way is because that's what's written "on paper" then we are being mindless robots with no ability to adapt to change. And that's a bad thing. Change is something that all systems in nature, and outside of nature, must deal with successfully or collapse.

    Can our laws save us from the devil because we have elevated their truth to the level of sacrosanct? No. Laws have the ability to save us only if they are workable laws. That is their value. Do laws have the ability to save us only? Or do they have the power to destroy us as well if we lack the courage or resolve or wisdom to recognize certain laws that are clearly dangerous to our progress and evolution and take the necessary action to change them? THAT, it seems to me, is at the heart of our disagreement.

    You are, it seems to me, defending the value of the law, simply because it is the law, as a last defender of all that is good and right about human civilization, separate and apart from the daily foibles of human greed, selfishness, and ignorance with which we constantly threaten to destroy ourselves, and taking nothing into consideration about the quality of the law. I am defending the ability to change the dangerous laws, the threatening laws, the laws that keep us from being flexible in meeting the challenges of the day before they can destroy us. Both can be equally valid. No law should be taken lightly, but, at the same time, no law should be followed blindly merely because it is "written on paper", as if it were carved into stone and brought down from the mount (if one believes in such things). There were only 10 of those and that's it..and none of those dealt with illegal immigration.

    Your presentation of my argument as believing that rationale is unimportant is far from accurate. Rationale is EVERYTHING. A rationale that questions a law, whose only real defense is that it is a law, is not an evil rationale. It may be an evil rationale, but not because it calls into question the effects of an existing law. Many very productive changes in the history of human civilization started out with a rationale that called into question the value, and even rightness, if I may use a word so rife with subjectivity, of a law or set of laws. There are many excellent examples that we are all familiar with right here in the USA's history and even before the existence of the USA.

    And finally, Bush's rationale was not a bad one, except that it was untrue. It was the falseness of the rationale that eventually made it bad. Obama's rationale is important (let me be perfectly clear about that...RATIONALE IS IMPORTANT...I never said otherwise in any of my arguments nor have I ever believed otherwise) AND it is true. If I want to defend myself against things that I didn't actually say, I could just call my ex-wife.

  8. Recall that I said: If I understand you, you believe that the action itself is everything and the rationale is not important.

    It appears that I did not understand you. I sincerely regret that and any other misunderstandings.

  9. Wayne suggests that one could argue that the Constitutionality of Obama's action is Article 2 Section 2's "he shall have Power to grant Reprieves and Pardons for Offenses against the United States". But I have always understood this to be limited to individual cases. Has anyone in the administration suggested that this clause might justify Obama's actions? And if so, is there a precedent for a sort of class-action pardon like this one? (These are real, not rhetorical, questions.)

    If we are pitting the above clause from Section 2 against Article 2 Section 3's "he shall take Care that the Laws be faithfully executed", we could be in real trouble. Could another President undo other congressional acts simply by selective enforcement (of, say, the tax code, drug laws, etc etc)? (Again a real question.)

    To be frank, I'm really bothered by what could be happening here.

    1. Rob,

      Although I would have, and still would, support legislation to exempt the defined group of individuals under discussion from deportation, I too am bothered by the way this happened.

      As far as I am aware the Administration has not claimed Article 2 Section 2 as Constitutional grounds for their action and to the best of my knowledge no one in the Administration has claimed that the defined group in question is receiving a reprieve or pardon - only a temporary lack of enforcement of the law.

      Whether the actual immigration laws on the book state a time frame in which they (the laws) must be enforced I do not know, but I suspect that the Administration’s legal position on this is solid (regardless of Mr. Krauthammer’s comments) without resorting to Article II Section 2.

      While 2 years would seem to be an unreasonable stretch for not enforcing a law what bothers me here is the element of selective enforcement of the law. Sure, I get indignant when the health department shuts down a child’s lemonade stand or a church bake sale because their products were not made in a commercial kitchen, but ultimately I am against selective enforcement of the law(s), even for lemonade stands or feeding the homeless from your own home.

      This Administration has the same issue with sanctuary cities, and although this Administrations is not the first to selectively enforce laws it the current one doing so. I will join you in being “really bothered”.

  10. I am just curious. It seems that everyone that has posted on here doesn't really have a complaint about the goal of this action (I apologize ahead of time if I am misinterpreting what others are saying) but are at best uncomfortable with the way that it is being executed (i.e., unilateral action by the President). How would others achieve the same result that it seems most Americans support. It seems that the Dream Act has been around a couple of years now but the House won't bring it up for a vote. What alternatives is a President left with? I really want to know.

    1. It is my feeling that the action taken by the Prez (Dream Act Aside) has wide public and bipartisan support. Indeed, Rubio was working on a similar piece of legislation and this may have been an opportunity (lost) for the 2 parties to work together. That’s one alternative.

      To be a little cynical the prospect of passing a Republican sponsored bill accomplishing the same thing would probably be unpalatable to the Ds in an election year. O’s action took that possibility off the table.

      The political historians on the blog can correct me if I am wrong, but I believe “The Dream Act” passed the HOUSE in 2010 but did not pass in the Senate, and getting 60 votes in the Senate is keeping the bill from passing.

    2. Mine concerns about this are:
      1. The way that O's rationale for the decision seems to trivialize the law - he has done this before (that one was worse). see torture and murder, Tuesday, May 29, 2012 on this blog.

      2. I want a comprehensive immigration plan (everybody claims that - in my case that is not a euphemism for open borders)and the more that is done (ahead of time) in support of the "open borders" position the harder it will be to get the "open borders" folks to support a reasonable comprehensive plan. For my thoughts on what that "plan" should look like see Tuesday, July 6, 2010 Immigration 2 on this blog.

  11. Tom, upon further review, the history of the Dream Act is more convoluted than I presented it. You are correct that a version of it did pass the House and it appears that no version has gotten the 60 votes necessary to overcome a Senate filibuster. My apologies to the Yellow Armadillos.

    Wayne having read your thoughts from 7/6/2010 I would generally agree with them.