High Noon Debate: Immigration reform and presidential tyranny

If the old clock on the computer is correct, we are just moments away from High Noon, meaning the first weekly Colorado Independent debate is set to begin. Colorado Independent columnist Mike Littwin – you know him, you love him — will be host to a series of debates with an all-star (well, we say all-star) lineup, starting with Mr. Moderate, Eric Sondermann, Ms. Libertarian Jessica Peck and Mr. Springs Libertarian, Elliot Fladen. They all will have interesting things to say. You can follow the debate here in real time every Wednesday. And you can join the conversation by tweeting with the hashtag #highnoondebate. Moderator John Tomasic will toss the best ones into the mix. Time to start.

litwin hn Mike Littwin, 12:00: The thing I love most about Republicans is that, in their world, nothing dies. You get a House Intelligence committee — controlled by Republicans — report on Benghazi, and it says nothing happened untoward by Obama, Clinton, Rice, CIA, etc. And Lindsey Graham says the GOP report is full of crap. And the special committee to look into anything that might embarrass Obama or Clinton continues because ….

Which brings us to immigration. As you know, Barack Obama made a tremendously dictatorial, emperor-like, czar–like power grab when he protected 4 to 5 million people here without documents from being deported temporarily. In my world, a power grab means, you know, grabbing power — not granting power to people who live in the shadows to not have to live in shadows. But that’s just me.

In any case, there’s a funding bill coming up – because there’s always a funding bill coming up – and the House right wing wants to defund part of the Homeland Security funding, even though that’s the money used to, yes, protect the country against terrorists. That’s the strange part, but it’s not the funny part. John Boehner will do anything not to shut down the government, so he’s trying to give his conservative wing some red meat and leave the government shutdown alone. And here’s my favorite, suggested by conservative columnist Rich Lowry and now being touted by several Tea Party types: that they won’t invite Obama to give the State of the Union address. Just write it up and send it over — like the Founders did – because, Mr. Barack Hussein Obama, you’re not welcome in our House.

Maturity lives!! As Washington Post Dana Milbank wrote, next step: Unfriend Obama on Facebook and then block him on Twitter.

It’s a movement.

fladen hn Elliot Fladen, 12:07: I’m glad to see that Mike Littwin has embraced the second amendment through the excellent promo picture! When can we go shooting?

On Benghazi, I’ve never been one of those guys that decided to rename myself “Elliot Benghazi Fladen” on social media (but if I had, I wouldn’t admit it here). That said, Harsanyi wrote some stuff about the report suggesting it was a whitewash. I haven’t had the time to get to the bottom of it, and frankly, I don’t care to.


On immigration, what stands out most for me is that the state GOP establishment is largely pushing a narrative they know or should know is false: that Obama violated existing statutory law by legalizing immigrants.

peck hn Jessica Peck, 12:09: The thing I love most about ______________ is that in their world, they ALWAYS do (the following).

Welcome to Political ad libs. It’s so fun to make assumptions about certain groups of people in politics. But here’s what I know after a career in or near the Capitol.

1. The ideological pendulum swings and it slaps us all in the face. Political ideology–and our relationship with it–isn’t so much about what we believe but our relationship with what we believe or what others believe. So go ahead and trash Republicans for ALWAYS doing something. But my view is that anyone who accuses an entire group of people of ALWAYS doing something is guilty of typecasting. And that is ignorance on its face.

2. The debate over executive power, from a procedural perspective, is a yawner. Republicans and Democrats love to scream about it so long as the other team’s guy is the one in the White House.

3. America is a nation of immigrants. Legal and Illegal. It’s complicated. Here is where we should focus instead of focusing on the dumb partisans who ALWAYS stick to party scripts.


sondermann hnEric Sondermann, 12:07:  I guess my role is to play the moderate here.  Which to me means sometimes taking Littwin’s bait and sometimes letting it pass by.

He comments that in GOP-land, nothing ever dies.  I might note, however, that in donkey-land, very little seems to change.  You know, “working families who play by the rules”.  And, of course, the “war on women” trope. Etc.  So we have two stuck parties.

And we have a President whose reaction to a rather cataclysmic election a month agotomorrow was something akin to, “what election?”.  Instead of moving to the middle, even microscopically, his approach is to double-down.

And so we march on.  And the mass of voters feel more and more alienated and discouraged.  And largely tuned out.


fladen hn

Fladen, 12:12: Regarding the Harsanyi cite – my bad, it was actually Mollie Hemingway that wrote the report… But also regarding immigration, here are a few things that I pointed out previously online in social media:

1) Obama didn’t act by an “executive order”. Instead he acted within an “executive action” done pursuant to already existing “bills” that had been “signed” after passing “prior sessions of congress” into law by presidents. See 6 U.S.C. 202(5) and 8 U.S.C. 1324a(h)(3)(B)

2) Obama didn’t “legalize” anybody who is an unauthorized immigrant. Although that is a power he does have so long as there is a visa available and there is a statutory basis to “waive inadmissiblity” – using those avenues was not what this action was about. Instead, Obama simply informed people that he was going to allow them to apply to have his administration review – on a case by case basis – a request that they proceed with the deportation of other people through next two years. This is “prioritizing” immigration enforcement under 6 U.S.C. 202(5) and as such is a statutorily-granted authority and in line with the Heckler v. Chaney, 470 U.S. 821, 831 (1985) line of cases.

3) Obama also informed people that those who, after a case-by-case review of whether they would be a low-priority deportation target and thus not pursued for a limited time, he would allow his administration to such successful applicants be able to receive a work permit. This is explicitly allowed under 8 USC 1324a(h)(3)(B).

4) To claim this is an unprecedent and only done with parks, etc. is simply wrong. As has been said over and over again the first Bush administration went outside existing law to expand – using executive action – the Family Fairness Program to cover more than 1.5 million unauthorized spouses and children. This represented 40 percent of the undocumented population of roughly 3.5 million unauthorized immigrants in the country at that time. That Congress subsequently ratified the action and substituted a legal status by statute with just simply deferred action does not change the character of Bush I’s actions – they were also done outside of the statutory process (and even prior to passage of 6 U.S.C. 202(5))


litwin hn Littwin 12:18:  Do we all agree that Obama had the authority? My point is: This won’t go away. Like Obamacare doesn’t go away. What chance is there of actually accomplishing something? And I’m wondering how Cory Gardner fits into all this.


fladen hnFladen 12:20: I think what is interesting Jessica is that the pendulum tends to swing in concert with whether a Presidential candidate is up for election that cycle. Mike, I even think Ryan Call and Cory Gardner seemed to agree that Obama had the authority.  Read their statements carefully:  

* Call: “However, the President’s outrageous decision to do an end-run around Congress and alter immigration policy by executive fiat flies in the face of the Constitution and our principles of representative democracy.” (note that he said “Policy” and not “Law”) *Gardner: – well, I was looking for his statement but couldn’t quickly find it.  I recall it being about the same, but maybe I’m incorrectly remembering it.


sondermann hn Sondermann 12:16 : With respect to immigration, I am of decidedly mixed minds.And could write a treatise.  But I know this format is intended to be short and pithy.

In a nutshell, as the first-born American son of two immigrants (refugees from Nazi Germany), I identify strongly with the immigrant experience.  I think our country is vastly stronger for its immigrant culture.  And work ethic.  It strikes me as inarguable that the current immigration system is broken.  Immigrants, even ones here illegally (yes, word used advisedly) has a right to dignity. And living in the shadows benefits no one.

Further, while these views are most definitely my own, I devote a significant measure of my civic involvement to working with immigrant populations.  Foremost among these commitments is my role with the Colorado I Have a Dream Foundation.  This leads me to strongly support the Dream Act and other such steps.  It is elementary that we should not punish children for the “sins” of their parents.  And in these cases, we should reward and encourage achievement along with commitment to this country.

But all that said, President Obama’s executive order was a substantial over-reach.  It violated even his own words over the past several years as to the limits of his authority.  In many respects, it was the right policy.  But the wrong process.  And succinctly put, FORM MATTERS….

I’d suggest that the biggest danger here is that of situational ethics. If you favor immigration reform, then you cheerlead for the President’s action. If you are less keen on such reforms, then you question his authority and support Republican intransigence. (I play against type in that way as in others.) But in neither case does principle or process really prevail. The Constitution is seen as elastic to fit one’s desired ends. Perhaps, as Jessica notes, this is all to be expected and just human nature. Process stories are indeed snoozers. But this is an increasing and worrisome pattern in our polarized politics. (See Obamacare / waivers.)


litwin hn Littwin, 12:30: Eric, Form does matter. On the other hand, there are many people who think Brown v. Board of Education was decided badly. If it was, I’m happy to let it go.

But I’m interested in the Cory position. He’ll have to take some votes on this. It looks like they’ll be some hard votes.


fladen hn Fladen, 12:35: Why take votes when you can simply grandstand in public and make factually inaccurate statements about the facts and the law on the topic while doing so?  Isn’t that what the House has done on this issue for months?


sondermann hn Sondermann 12:36: By way of his executive order, the President boxed himself in a corner.  But he also boxed the Republicans in their corner.

If – big IF – we could ever get past this dysfunctional polarization in D.C., there is a deal to be struck on immigration.  It would not be everything either side wants.  That’s what makes it a deal – or a compromise.  Cory Gardner would be positioned to play a role in such a negotiation.  (As would Michael Bennet.)  But the executive order makes all of that far more difficult by locking Democrats into a position of defending the President’s action and by feeding red meat to the Republican base in terms of perceived (and, quite likely, real) Presidential overreach.


peck hn Peck 12:36: Let’s move onto another topic, no?



fladen hn Fladen 12:36: Eric, as an originalist I never really trusted Obama’s legal analysis abilities.  But apparently the entire GOP began to do so in record numbers over the past few weeks once this immigration action came up…

In reality the entire “Obama said he couldn’t do this” is simply an excuse for the GOP to avoid saying that this is likely legal (and concede the point) or, on the other hand, say it is illegal and thus look foolish when it comes out that there is explicit authority for what Obama did.  For more on such authority, see here. As for a compromise, here is an idea: instead of focusing on the endless cliche of “secure the border” (which is irrelevant to overall visa numbers), why don’t we simply modify the rules on field preemption so that localities can have greater control over immigration matters?  Wouldn’t that make everybody happy?

sondermann hn Sondermann 12:37: I agree with Jessica.




fladen hnFladen 12:38: Ferguson! Hands up don’t shoot! 

I think the St. Louis Police Department was way out of line to criticize the St. Louis Rams for their on-field demonstration of “hands up don’t shoot” this weekend.


peck hnPeck 12:39: On that note, I agree with Charles Barkley.



litwin hn Littwin 12:40: This is a great example of tone-deafness. If a kid gets shot and your guy gets off and people are angry and want to make a symbolic point that doesn’t hurt anyone, the best thing to do is to just shut your mouth. Instead, we get metaphorical tear gas, if there is such a thing.



fladen hn  Fladen 12:41: Agreed Mike. You know what bothers me more than Al Sharpton being involved in the protests?  The idea that some don’t think that there is a problem of excessive use of police force that certain racial minorities get the brunt of.



sondermann hn Sondermann 12: 43: So much wrong on all sides.

The increasing militarization of our police forces.

– The disturbing number of cases of excessive force, starting right here in Denver.

– The relative lack of concern for unspeakable black-on-black violence in too many of our cities.

– The impulsive race to our respective political corners whenever an incident like Ferguson arises without much regard for the factual situation.

– Al Sharpton – always shameful.  And extra shame on this White House for trying to give him legitimacy.

Good for the St. Louis Rams players for exercising their First Amendment rights.  Good for Charles Barkley for speaking truth.

litwin hn Littwin 12:45: This is one more racial conversation we’re not going to have, because we get distracted by Al Sharpton. And although Obama has been accused so many times of using the race card, the truth is the last thing he wants to talk about is race. He should have gone to Ferguson. But he got burned on Trayvon Martin. He got burned on the beer summit. He just doesn’t want to go there. His speech on the night of the grand jury no bill moved no one. The funny thing is, we may have to wait until we have the next white president to have this conversation. (What am I saying? We won’t have it then either.)


fladen hnFladen 12:46: Did you see that Obama wants $263 million on this

Speaking of beer summits, how many beer summits has Obama had?  Have any of them ever worked out?

(this was the first one.)

peck hn Peck 12:48: In my next life, I’ll be appointed by Obama or Hickenlooper (heck, I’ll take either!) to a task force to study ANY issue too politically volatile to risk a brave, heroic response.  One day.  One day.  Both of these men need to grow a pair and get strong.  Noting this, Obama can’t win in the public eye when it comes to Ferguson.  It’s one of the few times that we, the People, aren’t wise enough to let him speak not as as a black man or a white man but as a President concerned about an issue of great public concern.


fladen hn Fladen 12:47: You know, I don’t really need a lecture from Obama on Ferguson.  What I want to hear is word from our local sheriffs and police chiefs as to what they are doing to make sure the excessive force issues we have seen elsewhere (and even here!) don’t occur/reoccur in Colorado.



litwin hn Littwin 12:53: Ha, Jessica. You’re absolutely right. The only time you can be politically brave is when you can’t actually do anything. (See: Cruz, Ted) So we’ll have a fracking commission, which will accomplish  nothing and then a legislature which – my guess — will pass nothing. And we’ll be right back where we are. Yeah, commission life isn’t bad, just so long as you don’t expect it to get anything done.


fladen hnFladen 12:58 I don’t know if I agree Mike. Although I strongly disagree with Obamacare, I think you could call Obama “brave” for risking and losing a lot of his capital to pass it.  Same with stuff that Reagan did.  And in fact what Bush II did.  The issue is at lower levels, being brave in politics means you aren’t going to get donors/supporters to run for higher office which in turn cuts off your ability to treat it as a career.

litwin hn Littwin 12:59 Being “brave” is just doing what you’re supposed to do? Obama was elected with health care as his top priority. It wasn’t brave. It was hard, very hard. And it did cost him. But imagine if he hadn’t done it. He’d have been clobbered by the very people who had elected him. He had no choice. I don’t mean that politicians never do brave things. I think that we actually do live in a nuanced world and that nuance doesn’t play well on cable TV news or talk radio.

fladen hn Fladen 12:59: So what it is it then to be brave when talking about politics? Only rarely anymore does somebody actually risk their life/property to take an issue up in this day and age: usually its just future prospects.


litwin hn Littwin 1:01 Thanks everyone for playing today. And thanks to those who were reading along. Hope you found the discussion interesting. We had a few technological glitches, but we promise to do better next week. See you then.



================= **** =================

Mike Littwin has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. He long has been a barb in the side of politicians and a voice of common sense, authority and wit.

Jessica Peck is a libertarian Republican lawyer-mom-comedian best known as the founder and sacred leader of Jessicaterrianism, the world-watched global phenomenon changing the way people think about politics. Or something like that.

Eric Sondermann is a high-profile, non-aligned, independent political commentator with a reputation for truth-telling, calling it as he sees it, and being able to distinguish analysis from spin. He is a regular panelist on Channel 12’s “Colorado Inside Out” on Friday evenings and co-hosts the “Colorado Decides” political debate series co-sponsored by CPT-Channel 12 and CBS-Channel 4.  Beyond these television roles, Eric is regularly called upon for his political insight by a laundry list of local and national publications.

Elliot Fladen is a former Department of Justice trial attorney and a 2005 graduate of Stanford Law School. He specializes in commercial litigation, government transparency, and construction litigation. Besides testifying on major state ethics legislation before the Colorado State House, stories regarding his work have appeared in the Denver Post, the Colorado Springs Gazette, The Colorado Independent, the Colorado Observer, and the Colorado Statesman. He is also an occasional guest columnist and/or contributor to the Colorado Springs Gazette and The Colorado Independent.

Moderated by John Tomasic.

HIgh Noon Debate puts informed Colorado political wits up against Indy columnist Mike Litwin. It takes place in realtime Wednesdays at midday, right here at ColoradoIndependent.com. Follow and add your own comments on Twitter at #highnoondebate.


  1. Where did Peck get the idea anyone said something about ______ ALWAYS? No one said that. Plus, what does it even mean to say, “Political ideology–and our relationship with it–isn’t so much about what we believe but our relationship with what we believe or what others believe”. Pure gobbledegook.

  2. I have no particular interest in, or comment to make, about “Jessicatarianism”, “RandPaulism, or any of the other silly nonsense called “Libertarian”.

    On the subject of Immigration, I have a question: What is the difference between today’s Teabaghead-Republican Party and the Old South’s KKK, when it comes to the matter of people of skin-color different from that of WASPs?

    Answers, anyone?

  3. […] High Noon Debate: Immigration reform and presidential tyranny If the old clock on the computer is correct, we are just moments away from High Noon, meaning the first weekly Colorado Independent debate is set to begin. Colorado Independent columnist Mike Littwin – you know him, you love him — will be host to a … Read more on The Colorado Independent […]

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