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  1. Utah House Speaker Unloads on State's Congressional Delegation for Ignoring Immigration Reform

    by , 07-10-2011 at 11:57 AM (Greg Siskind on Immigration Law and Policy)
    Wow, good for Becky Lockhart, the Republican Speaker of Utah's House of Representatives for calling the state's members of Congress for making the state legislature do the heavy lifting and then not giving cover. She's pretty harsh and pretty specific in her criticism:

    "Our federal delegation has watched the Legislature do the heavy lifting to get immigration reform off the ground, while their political will atrophies in the airless echo chamber of Washington, D.C.," Lockhart wrote in a commentary piece published Friday in Provo's Daily Herald. "We bleed in the trenches while they wallow in the temporary glory of meaningless blood-boiling rhetoric."
    When the Legislature asks them for support on the immigration issue, Lockhart wrote, "They run for cover wherever they can find it or throw rocks at those trying to make a difference."

    Read the article in the Salt Lake Tribune to see what she has to say about each member of the congressional delegation as well as the lame responses those members are offering in response to tough words from one of their own.
  2. Congress to Consider Museum of Immigration

    by , 07-10-2011 at 11:45 AM (Greg Siskind on Immigration Law and Policy)
    A nice idea especially since it the plan is to pay for it through private fundraising. From the Washington Post:

    Several members of Congress are calling for a presidential commission to study the formation of a National Museum of the American People in Washington to tell the history of immigration and migration that formed the nation.
    Virginia Rep. Jim Moran, a Democrat, and Tennessee Rep. John Duncan, a Republican, are expected to introduce legislation Thursday that calls for studying the feasibility of creating such a museum without any federal taxpayer funds.

    Moran has been a chief critic of building individual ethnic museums on the National Mall. Another presidential commission recently called for a Latino museum to be added to the Smithsonian Institution.
    A group that wants to build a Museum of the American People says more than 130 minority groups support the idea.

  3. Bloggings: A few additional thoughts about presidential power to disregard DOMA, by Roger Algase

    I would like to agree with Gary Endelman's conclusion in his article DOMA: What President Obama Can Do Now (07/08/ID), that the Obama's administration's reasons for refusing to disregard DOMA with regard to the issue of recognizing same sex marriages for as a basis for permanent residence are political, rather than legal. I made the same point in my comment in the 07/07/ID.
    I also agree with Mr. Endelman that DOMA is unconstitutional, as I also mentioned in my 07/07 comment. Then why am I questioning Mr. Endelman's conclusions now? First, it is always useful to have someone to act as a devil's advocate. My following comments are written in that spirit. Second, even though I would like to be able to support Mr. Endelman's conclusion that the president has and should use the power to disregard DOMA and instruct DHS to issue green cards on the basis of a same sex marriage, I believe that there are some basic questions that need to be addressed first.
    In support of his conclusion that the president has the discretion to disregard an act of Congress, such as DOMA, for constitutional reasons, Mr. Endelman puts forward the so-called "Dellinger Model", which was advanced in a 1994 opinion by then Assistant Attorney General Walter Dellinger. However, Mr. Endelman cites a questionable authority in support of the Dellinger model, namely an article by Professor Saikrishna Prakash: The Executive's Duty to Disregard Unconstitutional Laws 96 Georgetown Law Journal No. 5 1613, 1626-1627 (2008).
    Professor Prakash mentions the Dellinger Model as a possible theory to justify executive branch discretion to disregard an act of Congress that a president believes to be unconstitutional. But he then rejects the Dellinger Model. Why? As the title of his article makes clear, he believes that the president has a duty, not merely the discretion, to disregard any law that he (or she) thinks is unconstitutional.
    In Professor Prakash's view (if I understand his article correctly), if the president determines that a given law is unconstitutional, he (or she) is barred from enforcing it, because an unconstitutional statute is void ab initio. But an article contending that the president lacks discretion in dealing with an allegedly unconstitutional statute provides rather thin support for Mr. Endelman's conclusion that the president should disregard DOMA as a matter of discretion.
    As described in the Prakash article, there are three conditions in the Dellinger Model for using executive discretion to disregard a statute the president believes to be unconstitutional. These conditions, clearly, are meant to put restraints on the use of executive power. The first condition is that the president must "believe" that the Supreme Court would judge the Statute  to be unconstitutional. But what kind of restraint on unlimited executive power is that? Has there ever been a president with a view on any issue who did not believe that the Supreme Court would agree with him, if only the Court could see the light?
    The second precondition for the use of presidential discretion, according to the Dellinger Model, is that the "Judiciary's views play a central role in the constitutional analysis". But what better way is there to make sure that the Judiciary is left out of this process than to give the president authority to disregard an act of Congress without waiting for the Supreme Court to rule on it? It might be more accurate to call this second condition part of the "Orwellian Model".
    Third, the Dellinger Model appears to assume that the president would use the discretion to disregard an act of Congress responsibly and cautiously. But even if we trust President Obama to do so in the field of immigration (and what is responsible and cautious about "Secure Communities"?) how can we be assured that this would necessarily be the case in the future?  
    Just as President George W. Bush used his theory of the "unitary excecutive" in order, allegedly, to torture prisoners at Guantanamo, a future President Michele Bachmann might use her "discretion"  to cut off all "unconstitutional" Social Security benefits, or abolish "unconstitutional" Medicare, "Obamacare" health care reform (which is already running into constitutional headwinds in the courts), the minimum wage, union rights or the income tax itself (not to mention Roe v.Wade).
    Bachmann, or someone like her, might also try to destroy, on "constitutional" grounds, any vestiges of immigrant rights (such as they are). Suppose, for example, that she were to determine that the recent Supreme Court decision in Padilla v. Kentucky was wrongly decided and that, upon reconsideration, the Court would realize the "error" of its ways and overturn it.
    Under Professor Prakash's reasoning, a Bachmann administration might in that case be obligated to remove people who had been convicted of deportable crimes but never advised of the potential consequences of a conviction by competent counsel, even without a new Supreme Court ruling. Under the Dellinger Model favored by Mr. Endelman, a President Bachmann might have the discretion to disregard the Padilla decision and apply the law as it was prior to that decision, based purely on her own view of the Constitution. 
    Both Mr. Endelman and Professor Prakash themselves warn against the dangers for abuse of their respective expansionary theories of presidential power. They are right to do so. We should take their warnings seriously. One only wishes that they has both been clearer about where the line is between legitimate presidential authority to disregard an act of Congress for constitutional reasons and outright executive branch dictatorship.
    Mr. Endelman and Mr. Prakash also rely on the Supreme Court decision in Myers v. US 272 US 52 (decided in 1926, not 1976, as stated in Mr. Endleman's article through obvious typograpical error) to support their differing, if not conflicting, theories of broad executive power to disregard anything that the president thinks is an "unconstitutional" law. This is not the place to go into the details of that lengthy and complicated decision. It is enough for the purpose of this comment to note that the Myers decision was not unanimous. One of the dissenting Justices was named Oliver Wendell Holmes. Another was named Louis D. Brandeis.
    Do my above comments mean that I no longer agree that the president can and should disregard DOMA? Not necessarily. The evil of discrimination against individuals in same sex relationships codified in DOMA is so heinous that the administration should look hard for a justification to disregard that law, without waiting for the Supreme Court to strike it down. I wish that I could suggest one. But I do not have any magic bullets.
    (On the question whether the Supreme Court will ultimately strike down DOMA , I am a good deal less sanguine than Mr. Endelman. Of course, that would be the right decision, for the reasons stated in the landmark decision (and the concurring opinion of Justice O'Connor) in Lawrence v. Texas, discussed in my analysis of this decision last week. But we should not forget the Court's right wing Justices' obsession with "Original Intent". How many of the framers or signers of the Constitution would have been willing to recognize same sex marriages? Perhaps someone can provide a list.)  
    But in order to avoid opening the door to potential dictatorship by the executive branch (of which we had a foretaste in President George W. Bush's notorious "signing statements") any justification for presidential nullification of an act of Congress should rest on stronger grounds than those suggested in Professor Prakash's and Mr. Endelman's otherwise well reasoned and thoughtful articles. 
    Many of us would like to bestow more executive power on President Obama in the (as yet unrealized) hope that expanded presidential discretion might be used in order to apply the immigration laws in a more just, humane and rational way, as well as in connection with other vital issues. But as pro-immigration advocates, or progressives of any stripe, we need to be careful what we wish for. 
    Would we also be willing to recognize broad discretionary power, let alone a duty, to disregard an act of Congress for constitutional reasons without a Supreme Court ruling on the part of a President Bachmann or a President Palin? That question answers itself.
  4. Bloggings: Another state, another bad immigration law

    Danielle Beach-Oswald is the current President and Managing Partner of Beach-Oswald Immigration Law Associates in Washington, DC. Ms. Beach utilizes her 19 years of experience in immigration law to help individuals immigrate to the United States for humanitarian reasons. Born in Brussels, Belgium, Ms. Beach has lived in England, Belgium, Italy and Ivory Coast and has traveled extensively to many countries. Ms. Beach advocates for clients from around the world who seek freedom from torture in their country, or who are victims of domestic violence and trafficking. She has also represented her clients at U.S. Consulates in Romania, China, Canada, Mexico, and several African countries. With her extensive experience in family-based and employment-based immigration law Ms. Beach not only assists her clients in obtaining a better standard of living in the United States, she also helps employers obtain professional visas, and petitions for family members. She also handles many complex naturalization issues. Ms. Beach has unique expertise representing clients in immigration matters pending before the Federal District Courts, Circuit Courts, Board of Immigration Appeals and Immigration Courts. She has won over 400 humanitarian cases in the United States. Her firm's website is
    Despite sharp criticism from the Obama administration regarding Arizona's passage of a controversial immigration law last year, other states are continuing to follow Arizona's lead and pass other harsh immigration laws that replicate many of the key aspects of the Arizona law.
    On July 1, Georgia's HB 87 became law. However, Federal Judge Thomas Thrash halted two of the most contentious issues of the law under a preliminary injunction. Specifically, Judge Thrash put a halt on the bill's provision to allow police in Georgia to check the status of criminal suspects without proper identification. Additionally, Thrash also stopped another provision of the bill that would punish individuals who in the process of committing another crime knowingly harbored or transported illegal immigrants. Attorneys for the state of Georgia have already decided to appeal Judge Thrash's injunction.
    Despite Thrash's order of injunction, several key components of the law did go into effect on July 1 including:

    Requiring state officials to use the E-Verify system to check the status of new hires by instituting fines and possible removal from office, and
    Large fines and a felony offense for the use of false information or documentation when applying for a job.

    In January, other aspects of the bill come into place including a requirement that all employers in Georgia are to use the E-Verify system if they have more than 500 employees with all employers with at least 10 employees required to use E-Verify by January 2013. The mandatory use of E-Verify is problematic as E-Verify is a system prone to errors as a study commissioned by the Department of Homeland Security and conducted by Westat noted that over an 18 month period, E-Verify incorrectly authorized 54% of workers that should not have been cleared.
    Latino groups across Georgia protested the implementation of the bill last week, with Georgia's Latino Alliance for Human Rights organizing a large protest against the bill on Friday, July 1. Criticism also came from Georgia's large agriculture sector and other businesses in the state. Georgia's farmers are confused as to what their responsibilities are under the bill and how it will impact them economically.
    A new study by the Center of American Progress noted the high cost of state immigration measures by focusing on the impact of the Arizona's new law. Not only will state enforcement measures strain already stretched state budgets as police try to enforce the measure, but the Center for American Progress noted that Arizona lost $141 million in tourist revenue leading to a loss of nearly 3000 jobs and $9.4 million in state tax dollars.
    Since the passage of Arizona's immigration law, similar laws have been passed not only in Georgia, but also in South Carolina,Indiana, and Alabama. As states continue to tackle immigration matters, it is important for a cohesive policy from policymakers in Washington to handle this issue. Inconsistencies with the use of E-Verify and other components of immigration law lead to not only a confusing myriad of laws, but also unnecessary costs for both businesses and state governments.
  5. Mexicans Deciding Mexico is the Better Option

    by , 07-07-2011 at 10:54 AM (Greg Siskind on Immigration Law and Policy)
    The Atlantic reports on a phenomenon that I find pretty worrisome. Things are getting a lot better for the typical Mexican and the environment for Mexicans in the US (as well as Americans generally) has gotten bad enough that Mexican migration rates to the US have fallen to a 60 year low. We've made life pretty miserable here for these migrants despite our overwhelming need for their services (particularly in agriculture). But the fact that things were so much worse in Mexico kept them coming. Well that doesn't seem to be so much of a motivator anymore.

    We're seeing the same thing going on with skilled workers. High end workers are either staying in their high growth home countries or are going to countries with better visa programs.

    The country is starting to pay a dear price for decades of neglecting our employment-based immigration system and allowing agencies with an anti-immigrant bias to do the work Congress won't.
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