CARSON CITY — Attorney General Adam Laxalt got some high-profile support on Monday, as no less than the house organ of establishment capitalism — the Wall Street Journal — published an op-ed defending Laxalt from charges of overreaching on the issue of immigration.
Laxalt recently joined a lawsuit (Texas v. United States of America) that challenges President Barack Obama’s legal authority to implement an executive order on immigration that extends his previously implemented temporary deferrals on deporting so-called DREAMer children to their parents. Laxalt failed to ask Gov. Brian Sandoval directly about his opinion on the matter before adding Nevada to the lawsuit, and it became clear almost immediately that Sandoval disagreed.
Publicly, said the governor’s spokeswoman: “He [Sandoval] continues to believe that the best course of action is a legislative solution rather than legal action.”
But attorneys David B. Rivkin Jr. and Lee A. Casey disagree, and they had no problem making their views known on the Journal’s website.
First, it must be noted that Rivkin is not simply a disinterested concerned party. As Jon Ralston of RalstonReports.com first reported Monday, Rivkin is a campaign donor to Laxalt, having contributed $500 in February 2014. This fact is nowhere disclosed in the Journal piece, as it should have been. And while it is not dispositive of Rivkin’s points, readers are entitled to consider the connection. (Shall we next hear from Laxalt’s No. 1 supporter, former Gov. Bob List, about what he thinks of Laxalt’s actions? Why not send a letter to the Journal, Gov. List? They seem like easy marks.)
Now, to the substance of the Rivkin/Casey op-ed, which is behind a paywall and is quoted here sparingly in accordance with fair use rules.
• “Mr. Laxalt was right to join the suit. Mr. Sandoval’s legislative path will neither solve America’s vexing immigration problems nor rein in a president who has ignored the Constitution’s limits on executive power,” Rivkin and Casey write. It’s a curious stand, to be sure, and admits of the same error that lies at the heart of the litigation, which is that in the absence of legislative action, some extra-legislative action is required. While Obama chooses executive power, Riven, Casey and their friend Laxalt apparently choose judicial review.
The Constitution is clear, in Article 1, Section 8: Congress shall have the power to establish a uniform rule of naturalization. And Congress has established such a rule, which the president has taken care to faithfully execute. Let us not forget that President Obama has deported more illegal immigrants than any previous president.
No, the question in Texas v. United States of America is undoubtedly a political one: it’s about the manner in which the president is executing the law, rather than a general neglect of his duty.
Although the Senate has passed a bi-partisan immigration reform bill, the House has failed to take up that measure, or any other, on the subject. This is the right of the House, just as it is the right of the executive to determine the most efficient way to go about implementing existing law. (More on that below.)
• Rivkin and Casey continue: “As the Supreme Court stated in Youngstown Sheet & Tube Co. v. Sawyer (1952), ruling against President Harry Truman’s seizure of the nation’s steel industry during the Korean War, ‘the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.’”
But that case does not fit the facts of Obama’s action on immigration, which is less a seizure of an entire industry during a time of war and more of a practical (and smart) way of allocating the judicial resources of the United States.
For example, every person who drives faster than the posted speed limit is in violation of the law, and eligible to receive a ticket. The law provides no exemptions. But instead of ticketing every speeder (an impossible task, given limited resources) does anyone think the police chief is failing to enforce the law if he assigns his officers to concentrate their enforcement efforts in areas where speeding has caused deadly accidents?
Now, extend that idea to immigration. Let’s say two men came to the United States illegally 18 years ago. One is a habitual criminal, having been arrested and convicted of numerous felonies. The other is a family man who’s worked hard and raised a daughter whom he brought illegally into the country, a daughter who’s not about to go to college. Without question, both men have broken immigration laws. But it takes a specific kind of moral idiocy to say they are essentially equivalent cases. The president’s approach would be to start deportations with the criminal, while deferring (not forever, but temporarily) the latter.
This doesn’t make Obama a lawmaker, any more than the police chief in the previous example supplants the authority of the the state Legislature to set speed limits.
• More Rivkin/Casey: “However desirable immigration reform might be, congressional action won’t prevent this president from ignoring provisions in a new law that he dislikes or opposes. Only a determination by the courts that he has overstepped his constitutional authority can do that. Unless the president’s ability to play lawmaker is decisively defeated in litigation, congressional legislation on any contentious public-policy issue would be inherently futile.”
Let’s leave aside the obvious question — if the lawless emperor king Obama is willing to ignore the dictates of the legislative branch, what makes Rivkin and Casey so sure he’ll obey the dictates of the judicial? — in favor of another question: If Congress has the exclusive power to act, then should not Congress be the venue for this fight?
We all recall glumly the non-recess recess appointment case, which Rivkin and Casey fail to mention, although it offers them little help. The facts in that situation were clear: Obama tried to do something clearly illegal, and was repudiated by a unanimous court. But in this instance, it’s not even clear that Obama has done anything illegal (executive orders being fairly common among previous presidents when dealing with this issue), much less committed a legal violation worthy of a court right.
• Finally, one more: “All American states, including Nevada, have critical interests at stake here, both because of the burdens President Obama’s suspension of federal immigration law imposes on their state budgets and governments, but also because of their basic character as coequal sovereigns. The Constitution is a ‘grand bargain’ among the states and the American people. That bargain includes a powerful federal government, but one that has limited powers that may be exercised only in accordance with the institutional arrangements the Constitution creates.”
It’s not clear how a reading of Article VI (“This Constitution and the laws of the United States which shall be made in persuance thereof … shall be the supreme law of the land; and the judges in every state shall be bound thereby…”) establishes states as “coequal sovereigns.” But even if the federal government’s powers are limited, one of those powers is clearly reserved to it, the power to legislate on the issue of immigration. This political dispute lies between the Congress and the executive, and if the Congress objects to his actions, they can resolve the situation easily by passing a law in the regular order that prohibits Obama’s executive approach and prescribes a new policy.
In the end, that may very well be what a court tells Texas and its co-plaintiffs, including Nevada. That may be a timely reminder for Nevada’s new attorney general, who ought to be addressing himself to the real duties of his position, not questionable battles against alleged federal overreach.
UPDATE: A better-argued (but still wrong, in my view) look at the issue from the Heritage Foundation’s Hans A. von Spakovsky.