Sure. But the taxpayers of Texas, and to a lesser extent, the rest of the country, will be paying the bill for this pointless litigation.
Precisely. Sorry, busy day plus office holiday party.
Dan Kowalski is also one of the most experienced and knowledgeable immigration lawyers in the country, and is Editor-in-Chief of one of the premier immigration law publications in the country. He knows what he’s talking about.
So let me get this straight. If I post several pages of Justice Department memoranda explaining why Obama’s executive orders are legal examples of prosecutorial discretion, I get complaints that a “wall of legalese” is not an acceptable response.
Now, when I post a link to a brief story with links to the actual source documents, I get feedback that it’s oversimplification, and how can 130 law professors possibly know anything about the law, and why should anyone believe them?
Seriously, folks, what WOULD be an acceptable legal argument and/or summary?
And that is why there are lawyers that should know better that are willing to jump to it anyhow. Even though they know that they will lose, they do know that there is a number of people with access to money that are ignorant about a lot, and that they expect ideology to triumph past decisions and cases.
The lawyers will win a lot of dough though. However, I think that many lawyers are beginning to notice the high levels of poison in several cases. So much that they ignore the mountains of money that will benefit their firms. Lately there cases that the Republicans are wanting to take to court that are so dumb or hopeless that law firms do not want to take the coming failure and pressure from business groups (that are impossible to ignore as traditionally they support the Republicans more) no matter how good it would be to their immediate bottom line of the law firm.
http://www.politico.com/story/2014/10/barack-obama-john-boehner-lawsuit-112333.html
Doesn’t the concept of prosecutorial discretion usually apply to criminal cases, and not civil cases such as immigration or work status?
Well, it depends how formally you are talking about. For example, I bet one could raid just about any restaurant in Chicago (or any other major city) and find undocumented workers, but this country does not have the resources or the political will to do that.
I’m having fun imagining that the judge orders the governors of the states filing the suit to obey/enforce/fulfill every law on the books in their states. No discretion at all, ever. If they still have an 1835 law saying that motorcars can’t go faster than 30 mph…that has to be enforced. Fully.
A guy can dream…
Who said 130 law professors don’t know anything about the law? {cough} strawman {cough}
Can I assume Kowalski knows he is arguing against a case that has not actually been filed yet?
Obama didn’t issue an Executive Order. Obama issued two Presidential Memorandums. The first, Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century and Presidential Memorandum, and two Creating Welcoming Communities and Fully Integrating Immigrants and Refugees.
Does the State of Texas have legal standing to file a case against Obama’s two recent Presidential Memorandums? Has the State of Texas suffered some injury (monetary, physical, emotional, whatever) that would be grounds for such a case to proceed? Is Kowalski arguing from a position that there is no need for Texas to file suit or that he doesn’t want Texas to file suit?
Let’s be real – you stated that “Dan Kowalski wrote the HuPo article and that article is simply an opinion that Cruz and Abbott shouldn’t object to Obama’s Presidential Memorandums. Why? Because 130 law professors don’t think they should. Hardly a legal argument or proof of knowledge about this subject.” You essentially stated that 130 law professors and one of the most experienced practicing immigration attorneys in the country are less qualified to judge the legality of Obama’s actions in the immigration realm than…Ted Cruz?
Have you actually read the memo that the 130 law professors signed? Do you think that 130 law professors are not qualified to evaluate the legality of an executive action? What exactly are your own qualifications to evaluate the legality of the President’s action and/or your arguments that Obama’s actions were not lawful? The Justice Department issued a detailed legal memorandum which evaluated that his actions were lawful – have you read that? Presumably if you have, you don’t agree with it – what is your analysis?
Kowalski was arguing against a case that he anticipated would be filed, of which he could take a quite educated guess at the legal substance.
I haven’t yet read the suit that was just filed, and I am not a lawyer (though I am a paralegal who has worked in the immigration field in various capacities for most of the time since my first job after college, in 1990). So I am not really in a position to evaluate who has legal standing to do what.
However, I do have a fair bit of practical experience with prosecutorial discretion (which has existed in the immigration realm in various forms for many, many years – and in fact I just filed a citizenship application yesterday for someone who was legally able to do so because of his removability because of minor criminal issues that occurred many years ago, which the prosecutor decided not to pursue because of his other positive equities – serious medical issues which essentially would have been a death sentence if he had been deported, length of time since the offenses, minor nature of the offenses, extensive length of time as a permanent resident, and extensive family ties in the U.S.)
This is the kind of thing my firm, as well as immigration judges, Immigration and Customs Enforcement, etc. deal with every single day. There is a large body of case law and legal memoranda issued by various agencies in the immigration realm regarding how to balance positive vs. negative factors in exercising prosecutorial discretion and/or granting relief from deportation. It’s not some new thing that Obama pulled out of thin air.
Prosecutorial discretion applies to more or less any type of case where the government brings suit. So criminal cases, administrative proceedings (anything from the EPA suing polluters to a state agency revoking a professional license), immigration (which is basically just another type of administrative matter), or even wholly civil matters where the government acts as a traditional plaintiff (like a suit to enforce a publicly held copyright, for example.)
Prosecutorial discretion sounds like a nebulous and legalistic concept, but it really isn’t. It’s just a recognition of the fact that the government’s resources are finite and most of the time it cannot pursue every possible case.
Well, the memoranda aren’t really actions; they’re a list of instructions to the SHS that may never be acted on in whatever way Abbott objects to. So there is a ripeness problem. And by problem, I mean absolute bar. Texas might have standing to challenge whatever actions the DHS ultimately takes but that seems unlike.y
I have no opinion about whether Obama’s actions are legal, but as a general comment, you can’t prove much from “130 law professors” signing some statement. It’s not like there are only 130 law professors in the country and this is the consensus opinion of all of them. This is just the opinion of 130 experts that someone with an agenda went around collecting opinions from.
At most, what you can show from this is that the idea that it’s legal is not some far out notion, but that’s about it.
ISTM that part of this issue might be the fact that it’s not really about prosecutorial discretion in this case.
Obama is pretty open about why he’s doing what he’s doing, and it’s not because “the government’s resources are finite and […] it cannot pursue every possible case”. He’s doing it as a deliberate policy. At best he’s found a legal loophole in the bogus claim that it’s about prosecutorial discretion. But to this legal layman, it’s an interesting question as to whether the concept of “prosecutorial discretion” can be used as a legal fiction in cases that very clearly have nothing to with prosecutorial discretion.
It’s not an interesting question to lawyers; it’s a matter of settled law. The fact that it is a deliberate policy does not mean it is not discretionary. Rudy Giuliani directed his city attorneys to focus on street crime as mayor of NYC almost to the exclusion of investigating and prosecuting certain white collar crimes. The fact that he did so as a matter of policy and not on a case-by-case basis did not take it outside the realm of prosecutorial discretion. The Bush II administration exercised its discretion in choosing not to prosecute environmental violations. Still fair game.
If Obama was not enforcing immigration laws at all, you could very well say that he was not exercising discretion but abusing it - effectively abdicating his responsibilities. That’s not the case. As the professors point out, Obama has spend every dollar Congress appropriated for immigration enforcement. He’s deported more people than any prior president.
Did these people make these matters of policy directives? I doubt it.
I imagine Giuliani focused on street crime as a matter of policy and the white collar crime prosecution decline (assuming it happened altogether) was an incidental outcome. (I’m not sure mayors have anything to do with prosecuting white collar crime altogether.)
And I’m even more skeptical of your claims about Bush. Do you have any evidence that he decided as a matter of policy to not prosecute environmental violations?
Professor Ronald D. Rotunda stated otherwise in his testimony before Congress on Tuesday.
Some quotes:
Emphasis in the original.
http://judiciary.house.gov/_cache/files/674a84d0-5030-41df-976a-5ef0c1c63853/rotunda-testimony.pdf (PDF, page 10)
My qualifications are owning a personal computer and having internet access. 
While 130 law professors are certainly qualified to give their opinion of how a case might be settled or if a case should be filed but 18 States have filed suit against Obama’s executive actions.
The question now is whether Obama’s minions can, or can not, prevent the case from proceeding to trial.
It was pretty common knowledge at the time. Nothing secret about it or anything. Google “New Source Review investigation” or see here.
Professor Rotunda is a professor at a third tier law school,* and his testimony is just argument with only the appearance of support. He is cherry picking quotations from old cases and discussing things which are - from a legal perspective - completely irrelevant, like what the president said he could or couldn’t do in interviews. That’s certainly relevant to Fox News, and may very well be a decisive factor in the court of public opinion, but it has no impact at all on whether he has this authority.
With regard to the specific quotation you mentioned:
… I suggest you read the following footnote, which indicates that prosecutorial discretion does apply to administrative actions. He must have been a bit confused when he cited that case.
*normally I would not bring that up, but you seem to view him as an authority.
We’re discussing the use of prosecutorial discretion as a legal fiction when making policy changes. Your cite appears to be about an agency reinterpreting the NSR regulations, which has nothing at all to do with this issue.
Third tier law school, eh? Maybe he and his wife just wanted to enjoy warmer weather in their elder years.
Here’s his CV:
http://chapman.edu/our-faculty/ronald-rotunda
Harvard
Harvard Law (also Harvard Law Review)
University of Illinois
George Mason University
Are those third tier schools, as well?
In addition, he authored the leading textbook on Professional Ethics, and one of the most widely used textbooks on ConLaw. He also wrote a seven volume treatise on constitutional law that has been cited in court rulings all over the country, including at the SCOTUS.
What are your credentials, in comparison?
As for your comment about the footnote, are you talking about footnote #37? If so, the Professor clearly states that the case had to with standing, not with an agency’s (lack of) power to ignore the law.
As much as I dislike Obama as President and believe this is a horrible idea, I have to agree that Congress is looking stupid complaining about a power they could have held on to themselves yet chose to give to the executive branch. Similar to how only Congress can declare war yet Presidents conduct war all of the time under the War Powers Act. If you don’t want then to use the power, don’t give it to them.
But I do have a question. Let’s say the new Congress passes a law limiting the President’s discretion in this matter. Of course Obama vetos it but would he suffer any blowback from that going into election 2016?