Postmodern Conservative

Obama’s Plastic Memo-tastic Amnesty Action

So I was arguing politics with a fellow today, and I said, “Yeah, well what about Obama’s unconstitutional big amnesty executive order, huh?What about THAT?”

And he said, “Well, it’s not!”

I started to go into why it is unconstitutional, and had already made one or two choice points about the take-care clause, when he jumped in, and said, “No, no, what I mean is that it’s not an . . . ”

“Not an amnesty!” I impatiently interrupted.  “Well, consider what it does!  It . . . ”

But then he cut me off: “No! What I’ve been trying to say is that it’s not an executive order. It’s just a memo.” 

He pulled out his smartphone and made the relevant search. And you know what? While part of me still thinks this simply cannot be true, and hangs onto the thread that a Jerome Corsi story must somehow be wrong, for the present I’m obliged to say this appears to be the truth:

Today the National Archives and Records Administration, responsible for maintaining such filings, said no such executive order was ever signed or filed, confirming WND’s report Wednesday. A National Archives librarian, Jeffrey Hartley, made the confirmation in an email Thursday to WND. “As I indicated, it would appear that there is not an Executive Order stemming from the President’s remarks on November 20 on immigration,” Hartley wrote.

Instead, there are two memoranda. As I learned over at Powerline, the speculation is that the distinction between memo and executive order could help Obama in future legal proceedings.

Clutching more tightly to the poor guy’s phone, I sort of lost it a bit, in a Web-enabled episode of hyper-concentration, feverishly searching sites, flipping past the Federal Register’s record of Obama’s executive orders right over to The American Presidency Project, which tells us that

it was not until the Federal Register Act in 1936 that a more thorough contemporaneous documentation of Executive Orders began.  Before then, and occasionally afterwards, a later discovery of another order has resulted in assigning a number already in use together with an associated letter (e.g., 7709, 7709-A). . . . Today virtually all numbered Executive Orders are published.

And that “there have always been many forms of Presidential orders in addition to the numbered Executive Orders and Executive Orders included in the published ‘unnumbered series’. Currently, these commonly are called ‘Memorandums’ but can have many titles.”

“Directives” is another term political science text-books use for some of these.  But actually, I wasn’t thinking so . . . logically at that moment.  I was recalling a big post I wrote on the executive amnesty, titled “He Did It,” and wondering if he really did do it, and whether there could be a number between 13681 and 13682 that would signify that Something Was Done – 13682-X? 13681.5? . . . and I crouched down like everyone had to do in that annoying Being John Malkovich movie where they have to go to the floor that is between floors, what was it now? And when was that song? Ah yes, Floor Seven-and-a-Half! That’s where Obama’s amnestied illegals would be and his birth certificate too, and I knew something was happening there, but I didn’t know what it is, but they would believe me this time when I told them about the unconstitutionality of . . . , of . . . , 

“Is this where Executive Order 13682 is ?”

And somebody points to you and says,

“The memo’s his.”

And you say, “What’s mine ?”

And somebody else says, “Where what is?”

And you say, “Oh my God,

am I here, all alone?

I’ll spare you the rest of the details of my spiral down the rabbit hole of gibbering illumination. The fellow I had been arguing with had taken his phone and moved on when I snapped out of it, and there I was, dazed, sweating, but accepting now the strange reality. 

It is this. Millions of Americans have been having this big debate, about something so important it prompted a presidential address to announce it, ongoing Republican talk of impeachment, and speculation about whether it could create a permanent Democratic presidential majority. In all this debate and discussion, it was something both its opponents and its defenders had called, at the White House’s own lead, an “executive order.” But then it turned out that what Obama finally decided to do wasn’t an executive order, not really. It was a memo-type order. He made this change likely for legal reasons — as I skim through the OLC report defending the constitutionality, for example, I notice no use of “executive order.” And in his Obama little speech announcing the action also refrained from using that term. So, he knew he had made this change but, bizarrely, neglected to tell us all. He would let us continue to have the debate, one often focused on ascertaining the precise meaning of terms in the Constitution, while still using the wrong term for his action. Or maybe this was not so bizarre. Someone working with him thought a bit of political advantage would be gained by not highlighting the change, and Obama agreed to this. I’d call it an iffy calculation, as the advantage seems quite small, and could be secured only by an instance of dishonesty that would likely soon be discovered. But as his weird good luck would have it, the first of his opponents to figure out that he hadn’t issued an executive order was the birther-friendly Jerome Corsi

In any case, editors all over the world will soon be sending out e-mails like this: 

Note: if you recycle content which referred to the November 20 presidential action on immigration as an “executive order,” you must now update it to “executive memorandum.” Refer to the debate about such as the “executive action on immigration” issue, or the “debate about the constitutionality of Obama’s executive action.”

Or perhaps, the line is going to be: “Who cares about the technical legal terminology? Executive memo, order, directive — it all amounts to the same!”

Please, someone, show me why the Corsi story doesn’t hold up — show me that the “action” really was, or soon will be entered in as, an executive order. Because while I admit to being most impressed by any president who can give me a contact high from long distance, hallucinogens really aren’t my thing.

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