Obama Grubers Illegal Immigrants

Funny fact.  On Wednesday afternoon, Becca Lower called me and told me that Obama was going to make a speech on immigration and, hint, hint, Aaron you should write a post on his plan.  I confessed to her at that time why I hadn’t: I didn’t feel confident I knew what the plan was, yet.

Well, now we more or less do.  Here is his speech, last night:

And if you want for any reason to read the transcript, you can get it, here.

As for its legality, I concur mainly with Josh Blackman that while the President has broad prosecutorial discretion in choosing whether to deport certain people, he cannot simply declare that entire categories of persons will not be deported.  The President can give his “boots on the ground” guidance on the subject, but the determination has to be case-by-case, and I believe that this will be seen by the courts as violating this rule.  Obama states at one point that

So we’re going to offer the following deal: If you’ve with been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation. You can come out of the shadows and get right with the law. That’s what this deal is.

This is not an equivocal statement.  This is not “if you do these things, we will think about it.”  This is in fact contract-like language.  In any other context, language like that this would be seen as forming what is called a unilateral contract.  For instance, if I shouted out my window, “I will offer you the following deal.  If you mow my lawn, edge at the sidewalk and pull the weeds, I will pay you $50” and someone did it, as a matter of law I would owe that person $50.  The only reason why the same rule probably wouldn’t apply to what the President said is because it is the President saying it and he can’t bargain that sort of thing away.  But it represents a promise, “if you do X, I will do Y” which doesn’t suggest that it will vary on a case-by-case basis as lawful prosecutorial discretion must.

I think there is equally wisdom in Mickey Kaus’s observation that even if the legal technicalities are on Obama’s side, the courts still might find a way to stop him:

As state court judge Richard Neely argued in his revealing book, How Courts Govern America, there’s often a show rationale for a decision (embodied in the court’s opinion) and the real rationale. The real rationale isn’t necessarily bogus or partisan or otherwise “result oriented.” It’s just unstated. It can be something like ‘these victims have no access to the political system to protect them’ or ‘this is a much more workable rule,’ or ‘we can’t let defendants take the New York Times to trial whenever they get some detail wrong,’ or ‘my God, if we don’t resolve this 2000 election right now, the country will descend into chaos.”‘ The U.S. Supreme Court, in particular, is likely to feel a duty to intervene to preserve balance in the Constitutional system. And when conscientious judges see a need to intervene for some such intuitive, system-preserving reason, it seems like they’ll find a way to do it, even if it requires bending the technicalities and the show rationale to accomplish that purpose. (The show rationale — the opinion — in Bush v. Gore was unconvincing to the point of incoherence, after all.)

It’s just such a system-balancing rationale that presents itself in this case. The Court — or at least the five most conservative justices — might well reason:

My God, if Obama can do this then every President from now on will be taking, or threatening to take, expansive unilateral actions in disregard of Congress, importing entire un-legislated statutory schemes under the guise of ‘prosecutorial discretion’– acting on domestic policy, basically, the way Presidents traditionally act on foreign policy. We need to rein him in.

And so they will, whatever the technical rules of “standing” and section 103(a), 8 U.S.C. § 1103(a) say (and even pro-executive-amnesty attorney David Leopold says it’s “not an easy call” on the technicalities).

It is interesting stuff (even if I don't agree on every point), and I suggest you read the whole thing.  He suspects that the courts might even move very fast on this, because it is that important.

But I want to take a moment and focus down on ground level.  I want to imagine that I was an illegal immigrant. I am in fact, a naturally-born citizen but I can imagine.  So what would I think about this deal if I was an illegal immigrant?  How might I analyze what the President offered?  I might say this:

“I think it is a terrible deal, and I will not take it.

“Consider first, where I am now.  I am off the government’s radar enough that they haven’t picked me up, yet.  Yes, that could end any day now, but it might not.  But the moment I come out of the shadows, as they like to say, I am going to be on a government list, probably with my current address, the name of my employer [imagine I had one] and so on.

“And for what?  A promise not to deport me for two years--that is all.  Since this is prosecutorial discretion, there is nothing Obama can do to stop the next President from deporting me.  But now that next president will have my home address, and the name of my current employer to assist him or her.

“In fact, it is for less than that.  I would be very surprised if the process of registering and so on will take less than a year given bureaucratic realities.  So it’s a year of protection from deportation.  And in exchange for that, I have tied myself up with a nice little bow for the next president, or the president after that to find and deport me.

“That that is assuming that the Supreme Court doesn’t step in and declare the whole thing unconstitutional.

“The President is not offering to make me a citizen or a permanent resident.  This is what he said last night:

“[The deal] does not grant citizenship or the right to stay here permanently, or offer the same benefits that citizens receive. Only Congress can do that. All we’re saying is we’re not going to deport you.

“Now, it is always possible that Obama is lying and that I will get a permanent residency green card.  He might even try to grease the wheels towards citizenship.  But if he is not lying then all I will get is relative security from deportation, for some period less than two years.  And in exchange I will put my head in the guillotine for any future president who might change his or her mind.”

In other words, dear reader, it is a bad deal for the illegal immigrant.

So what is really going on here?  As Grubergate has shown us, you have to go by the cold operation of the law to divine Obama’s intent, rather than trust his glowing words.

It helps to review how I see the problem of illegal immigration.  As I wrote, in part of much larger piece, back in my Patterico days:

In Plyler v. Doe, Justice Brennan wrote:

Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants — numbering in the millions — within our borders.  This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.  The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.

Justice Brennan will never make any conservative’s list of favorite Supreme Court justices (and the outcome of the case should infuriate most conservatives), but in isolation, that passage is mostly correct in identifying the problem. It is an anathema to our republic to have such a substantial portion of our population be persons who labor under conditions we generally consider too inhuman for our citizens, to have so many people living here who have no say in our government and at best a problematic affinity with the country they live in. As I just explained, a citizen can’t say to them “you are as American as I am” or that they will be someday. There are still clumsy attempts to make that argument, such as Harry Reid’s infamous description of illegal immigrants as “undocumented Americans.” And worse yet, we even count those illegal immigrants in representation, so that the power of certain politicians will be increased by people who have no say in their election. It is not unconstitutional per se to do that, but it is in profound violation of the spirit of it and closely resembles the situation that existed under the three-fifth clause before it was rendered a dead letter; a population of persons who are denied the right to vote whose bodies are used to increase the power of those who might not have their best interests at heart.

And indeed the illegal immigration problem itself may very well be put at the feet of our nanny state. It is said that illegal immigrants do jobs that Americans won’t do, but um… really? At over 9% unemployment are there really Americans who think that they are above certain jobs? Once I read of a janitorial job opening in New Jersey that had 50,000 applications. If a sizable number of Americans are out of work and able to work, and not interested in doing any honest work that is available, then you have to put that at the feet of a social safety net that lulls them into the belief that sitting on your ass is a viable lifestyle choice.

But I think bluntly we are profoundly misunderstanding the problem with illegal immigration and why it is that Americans don’t do these jobs. Everyone agrees that the illegal immigrant problem is fed by the illegal immigrant labor problem, but there is another name for the illegal immigrant labor pool: the black market for labor. These are people who are not lawfully being employed, and when they are hired, often work under conditions that would be unlawful for legal immigrants and citizens. Their wages are often below minimum wage, they are worked beyond maximum hours without overtime, they are not granted as many breaks and time off, and so on. Could it be, my liberal friends, that the existence of this black market for labor is the inevitable and predictable result of the onerous regulations placed on businesses when they hire legal workers?

Whether by choice or design, the left has perpetuated a grave injustice on this group. They have created a safety net giving some Americans the false belief that they don’t need to work. They have created regulations so onerous that businesses seek out a black market for labor, ensuring that they will be working under conditions that liberals claim is too inhuman for regular Americans. And they have blocked any effort to stop the constant flow of new laborers into that illegal work force. And we end up counting them for representation without obtaining their vote—just as we did for three-fifths of all slaves. And what do you know, the people making up this illegal work force are for the most part not white. I am not saying it is slavery—since the illegal immigrant labor force is still doing all of this voluntarily—but the resemblance to Southern slavery is creepy and alarming.

What needs to happen is that we finally solve it and do it the right way. We need to finally shut down our border to illegal immigration. If we only do that the illegal immigrant community will eventually wither away; the current “crop” of illegal immigrants will eventually pass on, and their children will be—under the Fourteenth Amendment—full citizens. I mean there will always be a few illegal immigrants, but we can cut this problem down to a more manageable size. But that’s not all that I advocate. After we successfully get control of our border, I advocate amnesty—and I am not afraid to call it amnesty. Yes, it is not fair to those who play by the rules, but what else can we do? You can’t deport them all, and you can’t make life so miserable they self-deport; you have to assimilate them. But that only works if we actually shut down the border; otherwise the moment we make the current “crop” of illegal immigrants into legal immigrants, a new crop will come in to fill the void. And finally, we need to reduce the demand for this black market for labor, by cutting back on the nanny state to more reasonable levels.

It is probably arrogant to say “read the whole thing” when it is my own writing, but I think the piece holds up.  And that passage in that particular goes toward diagnosing the problem.  So how does Obama’s actions address those concerns?

Well, first, he ain’t closing the border.  He might talk tough about deportations but at best that is “catch and release.”  If we aren’t going to do anything serious about keeping illegal immigrants out, one wonders what the point of deportation really is?  It seems like a waste of money.

Second, they aren’t going to have the right to vote.  That is reserved to citizens.  So that isn’t going to solve that problem of them being counted for representation purposes without actually having the right to vote for their representatives.

But, according to The Hill, they will have the right to work.  So those who take the President’s “deal” will, if The Hill is right, be moved out of the black market for labor.  But then I already told you what would happen if you gave any kind of amnesty without closing the border:

But [assimilation] only works if we actually shut down the border; otherwise the moment we make the current “crop” of illegal immigrants into legal immigrants, a new crop will come in to fill the void.

So without a closed border, giving them the right to work is unlikely to eliminate the black market for labor or even cut it down significantly: at best, it will simply pump “fresh blood” into it.

And that is assuming that many people actually sign up.  As I pointed out a minute ago, for the individual illegal immigrant that seems like a bad idea.

Now, there might be something similar to a prisoner’s dilemma going on here.  For those who are not knowledgeable about economic nerd speak, here is a pretty good summary of the concept:

The prisoners’ dilemma is the best-known game of strategy in social science. It helps us understand what governs the balance between cooperation and competition in business, in politics, and in social settings.

In the traditional version of the game, the police have arrested two suspects and are interrogating them in separate rooms. Each can either confess, thereby implicating the other, or keep silent. No matter what the other suspect does, each can improve his own position by confessing. If the other confesses, then one had better do the same to avoid the especially harsh sentence that awaits a recalcitrant holdout. If the other keeps silent, then one can obtain the favorable treatment accorded a state’s witness by confessing. Thus, confession is the dominant strategy (see game theory) for each. But when both confess, the outcome is worse for both than when both keep silent.

Here, there is an obvious incentive for an illegal immigrant not to cooperate, as I pointed out above, but all illegal immigrants might be better off if a substantial number cooperate.  It is estimated that around five million illegal immigrants might be eligible for the President’s “deal.”  Imagine if even four million of them signed up?  Then the next president might find it politically impossible to crack down on so many people.

And this is what I suspect Obama is hoping.  But you notice he doesn’t appeal to the illegal immigrants to flood in to make it politically impossible to deport all of them.  He doesn’t tell them this is the plan.  Instead, he seems to be hoping that this group of people—who he already showed a certain disdain for—will misunderstand what he is offering and think he is giving them more than he really is.  As I noted above, the language of this offer is that of a contract, implying to these people some kind of obligation on his part that is in fact illusory.  He seems to be gambling on their ignorance, to get a result he believes will be better for them.

In other words, he is Grubering them.  As I said on twitter, I have now started to use the following definition of “Gruber:”

Verb.  To lie to someone or to otherwise mislead them, particularly a large population, in order to justify to them (or sell to them) something they ordinarily would not consent to, under the belief that it is “for their own good.”  A paternalistic deception.

So maybe that is part of his motivation.  But there may also be a darker side to it, too.  As I noted above, representation in the House is determined by the number of persons in a given place, not by the number of citizens or voters.  Citizen or not, illegal immigrant or legal immigrant, all are counted in determining representation.  And illegal immigrants tend to be concentrated in cities, and cities tend to vote democrat...  Of course as noted, right now illegal immigrants are rightfully counted in determining representation, but the problem is finding them, isn’t it?  In the 2000 census, the Clinton administration thought it had a wonderful solution to the problem: population sampling.  The explicit purpose of this was to estimate the number of people who didn’t like to be counted, such as illegal immigrants.  But this scheme--which was certain to be abused--was shot down in Dept. of Commerce v. U.S. House of Representatives (1999).  In that case the Supreme Court held that that the Census Act required the actual counting of people, not just the “estimation” of their numbers.

So is it possible that this is, at least in part, a scheme by Obama to maximize the counting of those who are currently illegal immigrants?  By bringing them “out of the shadows” maybe it will be easier to count them the next time a census rolls around and thus increase the power of Congressional Democrats.

And of course the other thing is I suspect that he is trying to trigger a constitutional crisis.  I suspect Obama is looking back in history to the way Democrats rallied around Bill Clinton when he was impeached and he is hoping that when they see “their president” attacked, there will be a similar circling of the wagons.  So far, the Republicans are not biting, with the leadership ruling out shutdowns or impeachment.  Right now the leading proposals to counter Obama are 1) a lawsuit and 2) Ted Cruz’s proposal to refuse to confirm any nominees until Obama backs down.  The first is a downright traditional response, and the second does seem to be an intriguing alternative to the more extreme methods of confrontation and is one of the few ideas the Republicans seem likely to be able to actually do.

So a constitutional crisis, an anticipated rise in Democratic power in the House, and a flood of illegal immigrants now seeking to sign up for his deal.  And at the cornerstone of all of it, is a President paternalistically deceiving these very people “for their own good.”  Is there any doubt that the President fully agrees with Professor Gruber on the stupidity of the masses?  He's doing it now, and to the detriment of this country.

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My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.