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Obama’s Gift to Trump PDF Print E-mail
Written by Jay Beskin, BT Contributor   
March 2017

Supreme Court victory gave the GOP a valuable immigration tool

Pix_JayBeskin_3-17Admittedly, I’ve alluded to my pet peeve in these pages a time or two. But as the years go by, it becomes more annoying. When people my age were young, this sort of thing was supposed to be on its way out. Now it seems we’re getting more of it than ever.

I’m talking about the appalling state of information from which we proceed in our political debates. In the past, there was a party called the Know-Nothings -- but now it seems that the less you know, the more qualified you are to speak on a subject. So naturally, when you don’t actually know what you’re talking about, you have to yell in place of speaking. Instead of pounding the facts, we pound the table.

Let’s take as an example the immigration issue. This is being loudly debated nationally, but in the Miami area it has taken on a particular flavor. The mayor of Miami-Dade County decided to cooperate with the federal government in enforcing immigration laws by the book -- or closer to the book than previously customary -- and local citizens have been conducting protests against this new policy.

This sort of protest is always uncomfortable because the pickets and placards are asking the country not to enforce its own law and asking the city not to participate in legal activities mandated by the federal government. In this situation, it is doubly uncomfortable because of an unforced error made by the last Democratic administration in Washington.

Back in April 2010, Gov. Jan Brewer of Arizona signed into law an ordinance requiring state police to check the immigration status of people pulled over for other suspected criminal activities. If they were found to be in violation of the federal code, they would then be taken into state custody and delivered to the Feds.

The smart move would have been to let this go. After all, in essence the State of Arizona was only agreeing to be helpful. If the federal government did not deign to prosecute in certain instances, they still had the option of accepting delivery of any prisoner from the state and then setting him free.

Instead, President Obama reacted as if personally slighted. On a visit to Arizona, he berated Brewer, who had come to the airport to greet Air Force One. Right out there on the tarmac in front of the press corps, he let her have it. Then he had the Justice Department bring suit to the Supreme Court. The court agreed with him that the state had no business setting immigration policy, a task bequeathed to the federal government by the Constitution.

So Obama won that round, but it was clearly a Pyrrhic victory. If Obama sympathized with the notion of sanctuary cities, he had just created a precedent bound to drive them out of existence. Think about it. For years Republican presidents had tried to enforce federal law and policy on immigration, and they’d been thwarted by local municipalities that refused to participate. Thus friends of less-fettered immigration were relying on the power of smaller governments to thwart the Feds.

By establishing the rule that only the federal government could set immigration policy and decide how to enforce it, Obama had in effect shut down the sanctuary cities. The next time a Republican took office, he now had a valuable new tool in his box.

In general, it does not pay to fight for a power you plan not to use, unless you’re happy for your successor to use it. Indeed, President Trump is now proceeding to demand that sanctuary cities honor federal law and policy -- or else. And he has Obama’s Supreme Court decision on his side.

The mayor of Miami-Dade County has agreed to comply, triggering the aforementioned protests. Once again, the citizens are asking the local government to challenge the hegemony of the federal government in the area of immigration policy. That case has already been decided. Obama won the right to decide not to enforce, and that same victory confers upon Trump the right to decide yes, to enforce.

But where my pet peeve comes in is the level upon which the debate is conducted. It seems like everyone on both sides is hollering, without clear information. Do we know the details of the existing law? It was enacted 30 years ago by a bipartisan majority. What is right about it that earned it all those votes back then? And what is wrong about it that should militate against our enforcement? Why should we reform it, and in what way? What guarantees do we have that the new system would be more effective than the current situation?

In the old days, we would have created a bipartisan panel to study the matter. A certain amount of silly ego stroking would be involved, taking a few former senators and praising them profusely while requesting they lead a fact-finding mission. They’d produce a fairly concise report outlining the problems, suggesting a broad framework for potential solutions, and laying out educated projections for the impact of new statutes.

The Democrats could then fight for keeping the new rules on the loose side, and the Republicans could push toward the stricter side of the spectrum. The final bill would fall somewhere in middle, with the majority party holding a slight edge.

This kind of approach is urgently needed in matters of broad national import, like immigration or healthcare. Instead we get shouting matches between two sets of bullies wielding slogans and statistical snippets taken wildly out of context. We as loyal citizens trying to do what is best are left without sufficient knowledge to make clear determinations, so we just line up behind the parties we generally support. Instead of a debate, we get a tug-of-war or a wrestling match.

My own inclination is to tilt the scales in favor of the immigrant. Not only am I a descendant of immigrants, but as an attorney, I’m very familiar with the immigration process. I might be out there myself in front of the mayor’s office waving a placard, if I thought I knew the law and the facts more clearly.

Having seen the immigration system in action, I could do some grumbling, but I do know that following the law generally produces a good result. It takes some time, like all good things.

Most of all, I wish we were all making these big decisions in an educated, deliberative fashion, so the law itself could work. That was why I went to law school in the first place.

 

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