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When A Deal is Not A Deal:
Immigration Reform Likely To Stall Longer Because Republicans Question If The President Will Execute Any Compromise

Jim Prevor’s Perishable Pundit, March 3, 2014

United recently sent out an announcement that it is still trying to prod immigration reform along:

United Fresh this week joined forces with 636 business organizations representing multiple sectors to send a letter to Speaker of the House of Representatives John Boehner to request House Republicans, who are the majority in the House of Representatives, move forward on immigration reform this year. United Fresh and the other businesses urged the House Republican Conference to use the Standards for Immigration Reform, released by the House Republican leadership in January, as a guide to developing more effective national immigration policies that can be passed by Congress. That document, which laid out principles for immigration reform, specifically cited the needs for a stable agricultural workforce.

"We sent the letter to make sure the House leadership knows that we are not giving up on getting immigration reform passed. Our industry has already suffered greatly because of outdated, dysfunctional immigration policies. By joining with a broad cross-section of businesses that are affected by these policies, we show that the economic consequences of no action will be huge," said United's Robert Guenther, senior vice president of public policy. "We will do everything we can to work with the House leadership, and all members of Congress, to formulate policies that meet the needs of the fresh produce industry but are also politically feasible. We understand this is a very sensitive issue for members of Congress, but a lack of action is the one thing our members cannot withstand."

The letter asserts that if immigration reform is developed and implemented properly it will deter illegal immigration, protect and complement our U.S. workforce, while at the same time generating greater productivity and economic activity, and respecting family unity.

We had written a piece here pointing out that farm labor shortages are a global concern in developed countries. Here in the United States, the failure of the different branches of government to agree on a program of immigration reform has been frustrating.

Since the Democratic-controlled Senate has passed a comprehensive immigration reform bill, much of the trade’s ire has been directed at the Republicans, as they control the House and have not advanced a bill that would lead to a conference between the House and Senate.

Tom Stenzel, President of the United Fresh Produce Association, expressed the exasperation of many in the produce industry who are focused on this issue when he was speaking to United’s Salinas membership this past summer. After urging the trade to reach out to Republicans, he explained how his own approach had changed:

“We started out six months ago telling House members, ‘Here’s what we want… this is what the content should be in the bill.’ I don’t even say that anymore. I say, ‘Pass anything you damn well please. Pass a bill.’ Because if they don’t pass anything, we’ll never have a chance to get to a final comprehensive immigration bill. Keep up the pressure.”

At one point it looked like the House  would pass separate bills related to different aspects of immigration. First, Speaker John Boehner had stated that the House Republicans “have no intention of ever going to conference” on the Senate bill. Then it looked like the House would, in fact, come out with a comprehensive bill; indeed House Republicans announced they would. When the Republican members reacted to the announcement, the Speaker decided it was wise to temper expectations.

There are a lot of reasons for this. Some are rooted in substantive differences as to what immigration policy should be. Others are rooted in the politics of the situation.

We would say, though, that the way Obamacare has played out has been the death knell for this approach.

During the debate over Obamacare, then-House Speaker Nancy Pelosi famously declared that “…we have to pass the (health care) bill so that you can find out what’s in it…”

Though widely mocked for the phrase, she was absolutely right. These comprehensive bills are so large -- and, typically, final versions are passed very quickly after multiple changes are made and, even then, they depend so much on what regulations are put in to enforce them -- that it is virtually impossible for any individual to really be confident he knows what the full implications of the law would be.

The Senate’s immigration bill is 1,198 pages. This is before a conference with the House that would undoubtedly lengthen the bill even more. This is also before they slip in last minute “favors” to different Representatives and Senators. We doubt many members of Congress have actually read the whole bill, much less truly understand its implications. Even fewer, probably not one, will have read the whole text of any final bill that might ultimately be passed.

We would think the collapse of Obamacare has soured the populace on the whole idea of these large comprehensive bills, bills where you have to pass the bill to find out what is in it.

There is another complication that is going to make it increasingly difficult to pass immigration reform.

Not long ago President Obama issued an announcement that the government would not enforce the law prohibiting the sale of individual insurance policies that do not conform to the new Obamacare standards. This followed an outcry as millions of people learned that the President’s often-made promise that under this program "if you like your current insurance, you can keep that insurance" was not being kept. In fact, the law required insurance companies to stop offering non-complaint insurance, even if people liked their policies. Now they had to buy more comprehensive, and more expensive, policies.

Politically this was supposed to be a big win for the President as he could now say that he had authorized people to keep their insurance, and if they couldn’t, say because the state insurance commissioners wouldn’t allow it or because the insurance companies wouldn’t offer it, it is their fault, not that of the President..

In reality, of course, the President’s move is very problematic. Offering these policies is illegal, and the President does not have authority to make them legal. Perhaps he can exercise prosecutorial discretion and not enforce the law – although even that is questionable as Article Two of the Constitution requires that the President "take care that the laws be faithfully executed." This has been traditionally interpreted as meaning that the President has no lawful authority to suspend the enforcement of laws.

As a practical matter, whether the federal government prosecutes criminally is only part of the issue. There are state laws that still stand, and the consequences of doing illegal things remains unknown. Suppose someone purchases one of these now illegal policies and gets sick and the illegal policy does not provide coverage for the illness, but the legal requirement is to provide coverage. That purchaser will file a lawsuit saying he was sold an illegal policy. The federal government’s failure to file criminal charges won’t protect the insurance company.

And the consequences of all this are severe. Virtually all the people who will want to keep their less expensive insurance policies are healthy. The ones who will want the comprehensive and expensive policies have illnesses. Obamacare was specifically designed to force every individual policy purchaser into the exchanges so the healthy buyers would subsidize the sick purchasers. If they now allow the healthy to stay out of the exchange marketplace and still compel the insurance companies to accept all comers in the exchanges, companies that priced their policies on the assumption of a mixed pool will wind up losing a fortune.

The significance of all this to the farm labor and broader immigration issues is that the President did not go to Congress to negotiate a change in the law. He acted unilaterally to suspend enforcement of the law.

This is not the first time. Earlier he suspended the employer mandate of the Affordable Care Act. The director of Stanford University’s Law School’s Constitutional Law Center explained:

President Obama's decision last week to suspend the employer mandate of the Affordable Care Act may be welcome relief to businesses affected by this provision, but it raises grave concerns about his understanding of the role of the executive in our system of government.

Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed." This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.

This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II's use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that "the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal."

To make sure that American presidents could not resurrect a similar prerogative, the Framers of the Constitution made the faithful enforcement of the law a constitutional duty.

A year earlier, on immigration itself, the President announced that the Department of Homeland Security would not enforce immigration laws against certain people:

They came to the United States at an age younger than 16 and are currently under 30, have not committed any major crimes, are in school or have graduated or served in the armed forces, and have resided in the U.S. for at least five years. Such aliens  who may number as many as 800,000  may now seek work permits for two-year periods without fear of deportation.

"It makes no sense to expel talented young people who for all intents and purposes are Americans," the president said at a Rose Garden press conference. Obama no doubt acted from a variety of policy and political motives, some of them likely admirable. But his move has pushed executive power beyond all constitutional limits  even in the view of this writer, an academic defender of a vigorous presidency and a Justice Department lawyer in the Bush administration.

Doubtless the President has many motivations, some admirable and some not, for declining to enforce these laws. But in the context of the immigration battle and, in fact, all hotly contested issues, the failure of the President to enforce laws makes the likelihood of compromise much more difficult. After all, compromise means the President and his opponents will each agree to things they would prefer not to have in the law. If members of the House and Senate start to feel that they can negotiate a deal and then the President, asserting some independent authority not to enforce the law, can simply decide not to enforce the things in the law the President didn’t like, then what is the point of negotiating?

We suspect that Mr. Stenzel, and the produce industry, will be waiting quite a while for a comprehensive immigration bill.

 

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