Discriminations

[NOTE: Please see the important UPDATE to this post]

Some of you are old enough to remember — or not so old that you can’t remember (me? my memory’s still so good I can’t recall the last time I forgot anything) — that just a few short years ago the left was giving President Bush holy hell (actually, unholy hell) over his use of “signing statements” to specify parts of laws he thought unconstitutional and hence would not enforce.

Examples abound (Googling “Bush” and “signing statement” just returned about 33,700 hits), but here are excerpts from one of the more moderate criticisms, this from James Bovard, author of several anti-Bush books:

President Bush has once again decreed that his personal pen is the highest law of the land. In a statement issued on October 4, 2006, he announced that he would ignore many provisions of the Homeland Security appropriations act he signed earlier in the day. His action vivifies that the rule of law now means little more than the enforcement of the secret thoughts of the commander in chief....

Bush pulled the same trick in March after he inked a renewal of the USA PATRIOT Act, announcing that he would scorn notifying Congress on how the feds are using PATRIOT Act powers. Bush declared that he would interpret the law “in a manner consistent with the president’s constitutional authority to ... withhold information.” Bush is apparently convinced that he is entitled to govern in secrecy, and any provision of a law to the contrary violates his imperial prerogatives....

Apparently, the government is no longer obliged to obey any law that Bush does not personally approve....

So what is the meaning of “limited government” in the Bush era? Merely that the courts and Congress must be prohibited from limiting the president’s power. Bush’s signing statements are building blocks for dictatorship. The longer he builds, the darker America becomes.

Indeed, criticisms of Bush’s use of signing statements were so prevalent that one of President Obama’s first acts as president was to indicate his aversion to them. As the New York Times reported on March 9, 2009,

Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama ordered executive officials on Monday to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.

Obama, of course, objected much more to Bush’s signing statements than he did to the idea of signing statements in the abstract, i.e., presidents picking and choosing what laws to enforce, as the next two paragraphs of the NYT article should have made clear:

Calling into question the legitimacy of all the signing statements that former President George W. Bush used to challenge new laws, President Obama ordered executive officials on Monday to consult with Attorney General Eric H. Holder Jr. before relying on any of them to bypass a statute.

Now, to go from the ridiculous to the sublimely ridiculous, consider President Obama’s enforcement (or not) of our immigration laws. The president was not president when our immigration laws were passed, and thus he did not have an opportunity to issue a signing statement saying that he had no intention of enforcing them. But they don’t say “actions speak louder than words” for nothing, and the president’s action (actually, his inaction) speaks volumes.

Heather Mac Donald nails the administration’s non-verbal immigration signing statement perfectly this morning on NRO’s The Corner:

In enjoining Arizona’s landmark immigration law, U.S. District Judge Susan Bolton maintains the Obama administration’s carefully cultivated fiction: that what concerns the White House regarding S.B. 1070 is its effect on legal, rather than illegal, aliens. Almost nowhere in the government’s briefs or the judge’s ruling is the arrest and detention of illegal aliens addressed. This fiction is transparent, however. The real threat posed by S.B. 1070 was that it would disrupt the de facto amnesty that the executive branch has accorded to the vast majority of illegal aliens. It would start to implement congressional mandates and the public will that the immigration laws be enforced. For that reason, it had to be stopped.

In fact, the president has not been completely non-verbal about his non-enforcement of federal immigration law. Recall that last month, for example, CBS News reported that

Republican Sen. Jon Kyl said at a town hall in Tempe, Ariz. that during a recent private meeting in the Oval Office the president said: “The problem is, if we secure the border, then you all won’t have any reason to support ‘comprehensive immigration reform.’” In other words, Kyl said, the president is holding border security hostage to comprehensive reform.

The White House, of course, denied ... well, something. As CBS’s Chip Reid reported,

I asked Deputy Press Secretary Bill Burton (subbing for Robert Gibbs) about it today at the briefing. "Kyl knows the president didn't say that," Burton said. He would not say exactly what it was the president DID say (Burton said he was not present at the meeting), and he deflected a question about whether Kyl lied.

Afterward Kyl's office said the senator is sticking to his guns.

Sounds to me like all Burton denied was that the president uttered the exact words mentioned by Kyl.

Feel free to send me the links when you run across examples of anyone who denounced Bush’s signing statements also criticizing Obama’s much more massive refusal to enforce federal law. Somehow I’m not worried about my inbox overflowing.

UPDATE [11:30PM]

The lawlessness of the Obama administration is possibly much more extensive than I suggest above. On National Review Online late this afternoon Robert VerBruggen discussed, and provided a copy of, an internal U.S. Citizenship and Immigration Services memo circulating on Capitol Hill that contemplates undermining and even flaunting current immigration law on a scale far grander than the mere non-enforcement we’ve seen so far.

If Congress won’t pass “comprehensive immigration reform,” the memo considers the following possibilities (among others) to be done by executive fiat:

• “administrative relief options to . . . reduce the threat of removal for certain individuals present in the United States without authorization”;

• “USCIS can extend benefits and/or protections to many individuals and groups by issuing new guidance and regulations, exercising discretion with regard to parole-in-place, deferred action and the issuance of Notices to Appear (NTA), and adopting significant process improvements”;

• “Increase the Use of Deferred Action ...,” which is defined in the memo as “an exercise of prosecutorial discretion not to pursue removal from the U.S. of a particular individual for a specific period of time.”
  

“In recent weeks,” VerBruggen points out,

Sen. Chuck Grassley and others in Congress have been pressing the administration to disavow rumors that a de facto amnesty is in the works, including in a letter to Department of Homeland Security head Janet Napolitano. “Since the senators first wrote to the president more than a month ago, we have not been reassured that the plans are just rumors, and we have every reason to believe that the memo is legitimate,” a Grassley spokesman tells NR. (NR contacted DHS, but a spokesman did not have a comment on the record.)

In an Update, VerBruggen quotes a statement just released by USCIS that refuses to discuss “notional, pre-decisional memos,” but the statement concludes by stating:

To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.

How reassuring.