The Immigration Backlash

Summary

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Podcast Summary: The Political Scene | The New Yorker

Episode: The Immigration Backlash
Date: February 28, 2015
Host: Dorothy Wickenden
Guests: Jeffrey Toobin, Ryan Lizza

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Overview

This episode of The Political Scene delves into the political and legal battles over immigration policy during the final years of the Obama administration. The conversation centers on Republican resistance to President Obama's executive actions on immigration, the resulting confrontation over Department of Homeland Security funding, and the broader implications for the GOP as the 2016 presidential election approached. The discussion also explores the increasing role of the judiciary in shaping Obama's legacy on immigration, health care (the Affordable Care Act), and other key issues.

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Key Discussion Points & Insights

1. The Republican Party’s Immigration Dilemma

• Host Dorothy Wickenden opens the conversation by highlighting the paradox: The GOP’s hardline stance on immigration hurt them in the 2012 presidential election, but elements of the party continue to push draconian measures, such as threatening to shut down government departments over immigration policy ([02:03]).
• Ryan Lizza points out the internal conflict within the party:
  • “The RNC has put out an entire report talking about how they need to move off this position on immigration. And yet among the base of the party and the most prominent conservatives, it’s one of the most important issues.” ([02:47])
  • Lizza emphasizes that while tough stances helped Republicans in the 2014 midterms, those same positions are unlikely to help in a presidential election, especially given demographic changes.
  • The divide between the House and Senate further complicates the party’s response ([03:58]).

2. Leadership Divisions: Boehner vs. McConnell

• Wickenden notes the rare breakdown in communication between Senate Majority Leader Mitch McConnell and House Speaker John Boehner, due to tactical disagreements over how to confront Obama’s executive actions ([03:58]).
• Ryan Lizza explains:
  • McConnell, with limited power in the Senate, must deal with the chamber’s procedural rules, while Boehner in the House faces powerful hardliners ([04:20]).

3. Legal and Judicial Challenges to Executive Power

• The episode examines Obama’s use of executive actions to shield some undocumented immigrants from deportation, which opponents branded "executive amnesty" ([04:38]).
• A coalition of 25 Republican-led states challenged these actions in court, purposely bringing the case before a conservative federal judge in Texas, Andrew Hanan, who blocked the policy via the Administrative Procedures Act ([05:25]).
  • Jeffrey Toobin notes: “So this major immigration policy of putting some people off limits for deportation is not the law of the land anymore. It’s on hold. And the Justice Department has now appealed to the Fifth Circuit Court of Appeals, also very conservative. I think this is going to wind up before the Supreme Court again.” ([06:25])

4. The Broader Impact of Demographics

• Ryan Lizza and Jeffrey Toobin observe that structural advantages in the House, dominated by white Southern and Midwestern Republicans, push the overall party toward positions that risk alienating national, diverse electorates crucial in presidential races ([07:13]).
• The 2016 race, Lizza says, will require a different Republican strategy: “Our strategy in a presidential election has to be completely different given the states that are in play and the demographics.” ([08:14])

5. The Judiciary's Oversized Role in the Obama Years

• Jeffrey Toobin argues that, with Congress paralyzed by partisanship, courts are increasingly called upon to arbitrate the fate of major pieces of Obama’s agenda—including immigration, the Affordable Care Act, climate policy, and net neutrality ([05:25], [14:17]).
• On King v. Burwell, a pivotal Supreme Court case threatening to strip ACA subsidies in federal exchanges, Toobin says:
  • “It may be the most important Supreme Court case of our lifetime. No joke.” ([09:15])
  • A loss for the administration would strip subsidies from 8 million people, potentially sending the ACA into a “death spiral” and unraveling the statute ([10:35]).

6. Supreme Court Politics and Obama’s Legacy

• Despite Obama’s appointment of Justices Sotomayor and Kagan, the ideological balance on the Supreme Court remains unchanged ([11:34]).
• Toobin and Lizza discuss whether Chief Justice John Roberts might rule to preserve the ACA out of concern for the Court's institutional standing ([12:10]).
• Obama’s final years in office are framed as a defensive battle, focused on preserving earlier achievements while recognizing that future fights—in climate change, immigration, and net neutrality—will play out in the courts ([13:06], [14:17]).

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Notable Quotes & Memorable Moments

• Ryan Lizza on the GOP’s dilemma:
  “The RNC has put out an entire report talking about how they need to move off this position on immigration. And yet among, you know, the base of the party...it’s one of the most important issues.” ([02:47])

• Jeffrey Toobin on immigration enforcement:
  “There are approximately 11 million people in this country illegally. The Department of Homeland Security has a budget that could attempt to deport about 500,000 of them.” ([05:25])

• Jeffrey Toobin on the stakes of King v. Burwell:
  “It may be the most important Supreme Court case of our lifetime. No joke.” ([09:15])

  • On the ACA: “If the plaintiffs win this case, all the people on the 36 states will lose their subsidies, probably lose their insurance...leading some say, to a death spiral of higher premiums, more cancellations, and essentially the unraveling of the law.” ([10:35])

• Dorothy Wickenden on Supreme Court dynamics:
  “But Obama has managed to get two women appointed to the Court who reflect his political views. What changes are you beginning to see?” ([11:16])

• Ryan Lizza on Obama’s second-term strategy:
  “He’s basically now in the other extreme where he has absolutely no interest in trying to negotiate anything except maybe a couple of...trade deals. And his view is to think about his legacy...” ([13:06])

• Jeffrey Toobin on the lasting court battles:
  “The FCC passed an important new net neutrality law that is going to be challenged in the courts as well....Those are two more areas where the courts will be handling Obama’s legacy.” ([14:17])

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Timestamps for Important Segments

• Intro & Context – [01:38]
• Republican Party Woes on Immigration – [02:03]
• Boehner-McConnell Rift – [03:58]
• Obama’s Executive Actions and Legal Pushback – [04:38]
• Texas Judge and Court Challenges – [05:25]
• Demographic and Electoral Impacts – [07:13]
• Legal Issues & King v. Burwell – [08:55]
• Supreme Court Partisanship and Obama’s Appointments – [11:16]
• Obama’s Strategy and Endgame – [13:06]
• Legacy Fights: Climate and Net Neutrality – [14:17]

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Episode Tone

The conversation maintains an analytical, occasionally urgent tone, especially when addressing the stakes of legal and political battles. The hosts combine deep political insight with measured skepticism about congressional effectiveness, while underscoring the high stakes for Obama’s presidency as his agenda increasingly faces judicial review.

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Useful For

• Listeners seeking clear analysis of the interplay between immigration policy, party politics, and the courts
• Anyone wanting to understand the political landscape for the 2016 elections
• Those interested in the legacy-defining legal battles of Obama’s second term

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Transcript

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[Dorothy Wickenden]

This is the Political Scene, a weekly conversation with New Yorker writers and editors about politics. It's Friday, February 27th. I'm Dorothy Wickenden, executive editor of the New Yorker.

[Ryan Lizza]

What we said to Republicans is instead of trying to hold hostage funding for.

[Squarespace Advertiser]

The Department of Homeland Security, which is.

[Ryan Lizza]

So important for our national fund, that and let's get on with actually passing comprehensive immigration reform.

[Dorothy Wickenden]

That was President Obama at a town hall in Miami on Wednesday. Republicans have been threatening to shut down the department in retaliation for his executive action on immigration. Jeffrey Toobin and Ryan Lizza are here to discuss what this battle reveals about divisions in the Republican Party as the election of 2016 approaches. We'll also talk about Obama's difficulties in wielding executive power in the face of a hostile Congress. Okay, Ryan, you've got to tell me, didn't Republicans lose the presidential election of 2012 in large part because of their draconian stand on immigration? And don't they suffer politically after each of these threatened or real shutdowns of various parts of the government? This time they're holding out on national security.

[Ryan Lizza]

I think that's true on immigration. That the Republican party has generally the last few years politically has not been beneficial to them to take the sort of hard line stance. That was not really true. The exception was, of course, in last year's Senate elections, which took place in a lot of conservative states. And remember, Barack Obama didn't push through those executive actions on immigration because he was worried about the impact on the midterms. He was worried it would be bad for the Democrats. But certainly in a presidential year, considering the growth of non whites in the electorate and how well Democrats have done with African Americans and Hispanics, this is a bad position for the Republican Party to be in. The RNC has put out an entire report talking about how they need to move off this position on immigration. And yet among, you know, the base of the party and the most prominent conservatives in the party, it's one of the most important issue. And there's a lot of senators who argue they won back the Senate and kept the House and ran on this issue and that they should stick to their guns and try and reverse Obama's actions, which he implemented after the election was over. And so there's a very messy parliamentary debate that's going on this week to sort all this out.

[Dorothy Wickenden]

Ryan, one of the most interesting things that's been going on is the tiff between Mitch McConnell and John Boehner. And McConnell, after all, has consistently been Obama's most vociferous opponent on just about any bill or policy that the president supported. And I hear that McConnell and Boehner are no longer speaking to each other because they have different way about this issue.

[Ryan Lizza]

Things are a lot more difficult between him and Boehner. He runs the Senate, which is not a majoritarian institution, and he doesn't have the 60 votes he needs to do whatever he would like. Boehner runs the House, which is majoritarian and where the minority literally just doesn't matter. And so that difference is, what's playing out this week?

[Dorothy Wickenden]

What are they objecting to in Obama's executive order?

[Ryan Lizza]

Technically, it was an executive order, but it was a series of executive actions asking the Department of Homeland Security not to to deport certain classes of illegal Immigrants. That's the gist of it. It's what Republicans call executive amnesty. Implementing part of the comprehensive immigration reform, some of the ideas that were in that bill that has failed several times over the last decade, and implementing them through some executive actions. Some of those actions were halted this week by a federal judge. So the other argument from Boehner is buy some more time and let this play out in the courts and see where that process leads.

[Dorothy Wickenden]

Jeff, who is this federal judge int Texas? Andrew Hannan, who is extremely conservative and has well known views on the subject.

[Jeffrey Toobin]

Right. This is, I think, a preview of a theme that is going to be very significant in the last two years of President Obama's term, which is that Congress is paralyzed. They will maybe keep the government open 365 days a year, but that's really about all they will do. So opponents of President Obama have turned to the courts to try to invalidate as much as possible the president's legacy. Part of that involves immigration. Now, just to talk generally about immigration, There are approximately 11 million people in this country illegally. The Department of Homeland Security has approximately a budget that could attempt to deport about 500,000 of them. So what the president did, he directed the Department of Homeland Security to say, we are not going to attempt to deport the the following classes of people. Now, they weren't going to deport them anyway, but he established a policy that said these people are essentially off limits for deportation. 25 Republican states, attorneys general, governors went to court. They picked very carefully which judge they went before. They went before this very conservative judge in Brownsville, Texas. And the judge said this policy did not go through the appropriate procedures. Before it was put into effect, the president violated something called the Administrative Procedures Act. So I'm putting the whole thing on hold. That is now the law of the land. So this major immigration policy of putting some people off limits for deportation is not the law of the land anymore. It's on hold. And the Justice Department has now appealed to the fifth Circuit Court of Appeals, also very conservative. I think this is going to wind up before the Supreme Court again.

[Ryan Lizza]

I think it goes back to coming into a political cycle where Democrats have in recent years tended to have an advantage. And the power center of the Republican Party is in the House of Representatives.

[Jeffrey Toobin]

Right.

[Ryan Lizza]

It's dominated by Southern and Midwestern white Republicans, and they have a lock on that House of Representatives. And it's a very, very, very conservative caucus. It's not very diverse, and it pushes the entire party into positions that are not as defensible when a presidential candidate has to win. In a lot of swing states that are increasingly diverse, Republicans probably can't win the presidency unless they win Florida. Very difficult to see the path. So the way this is playing out among the presidential primary process in the Republican Party is you have people, it looks like it's going to be Jeb Bush who are saying, yes, you won back the Senate in 2014, yes, you have a lock on the House. But our strategy in a presidential election has to be completely different given the states that are in play and the demographics.

[Dorothy Wickenden]

We're going to take a quick break.

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[Dorothy Wickenden]

Now I want to get back to the legal issues that you were beginning to raise, Jeff, how these court cases are really going to have a big effect on Obama's political legacy. So let's look at what's going on in the Supreme Court right now, which is debating the biggest policy initiative of the Obama administration, which is the Affordable Care Act. What issue in King v. Burwell?

[Jeffrey Toobin]

This case is so enormous that, you know, I hyperventilate every time I think about it. It's not a grand constitutional case, but in terms of the stakes for people's actual lives, it may be the most important Supreme Court case of our lifetime. No joke. So here's the issue. Everybody knows that the core of the Affordable Care Act, Obamacare, is setting up these health care exchanges where individuals can buy health insurance if they don't get it from their employ. And, you know, over 10 million people have done it. And the way these exchanges work is that states can set them up. And 14 states in the District of Columbia have done that. Or the other states, mostly under Republican control, have said, we don't want to set up our exchanges. The federal government can do it. So the federal government set up these exchanges where people in 36 states buy insurance. There is a single line in the law that suggests under one frankly tortured reading, that the Subsidies to get the insurance from the exchanges are only available to people who buy on the state exchanges, that is, in the 14 states. So a conservative group, the Competitive Enterprise Institute, recruited lawyers, recruited plaintiffs, and they sued and said that all the subsidies to the people who buy insurance on the Federal exchange in 36 states are unlawful. You can't give them those subsidies. So that means if the plaintiffs win this case, all the people on the 36 states will lose their subsidies, probably lose their insurance. So you're Talking about approximately 8 million people losing their health insurance that they got through Obamacare, which is significant enough in and of itself, but it throws off all the calculations for all of the insurance policies granted under Obamacare, leading some say, to a death spiral of higher premiums, more cancellations, and essentially the unraveling of the law.

[Dorothy Wickenden]

You've written several books where you've addressed in different ways, the highly politicized nature of the Supreme Court, which you're saying is more politicized than it's ever been, which is really saying something. But Obama has managed to get two women appointed to the Court who reflect his political views. What changes are you beginning to see?

[Jeffrey Toobin]

All that matters in Supreme Court appointments, frankly, is whom they're replacing. And the fact that Sonia Sotomayor and Elena Kagan replaced David Souter and John Paul Stevens means the ideological balance on the Court is essentially unchanged. So you have five Republicans, four Democrats, Anthony Kennedy, occasionally in certain issues, gay rights, most notably, siding with the more liberal members. John Roberts surprising everyone, especially me, voting with the four liberals on the Affordable Care Act. And so the question here is, can the Obama position get five votes when this case is argued? And the answer is a resounding maybe, as far as I'm concerned, Because I do think John Roberts in particular is concerned about the institutional credibility of the Court. And to take four words in this statute and create a genuine crisis in the United States. I mean, this will be a crisis if the plaintiffs win. I'm not sure John Roberts is anxious to see the court cause that kind of chaos. It's not about the Constitution, which applies in every case. It's just about the words of this law. I think there are going to be at least Kennedy and Roberts thinking hard about whether they want to do that.

[Dorothy Wickenden]

So, Ryan, a final word on all this. Obviously, President Obama sees all this coming. What is he doing? What can he do to address any.

[Ryan Lizza]

I think the way to think about Obama's last two years is that he's basically given up on Congress and after probably spending too long and early in his term trying to negotiate with Republicans. He's basically now in the other extreme where he has absolutely no interest in trying to negotiate anything except maybe a couple of these trade deals. And his view is to think about his legacy as a lot of presidents do in their last two years, and to protect the stuff he passed in his first term.

[Dorothy Wickenden]

Right, but if the Affordable Care act, if it's dismantled by the Supreme Court, what can you do?

[Ryan Lizza]

Yeah, the amount of vigorous legal defense on all those fronts, you know, he's appealed the decision in Texas we talked about, and obviously they're going to fight the ACA case aggressively. It's almost like the last two years, everything has sort of moved to the courts and Congress and Obama, you know, you wouldn't expect anything from them. And then I think if there's two big things he wants to get done that will, you know, leave a positive legacy for a second term. One is the nuclear deal with Iran, and two is getting the climate change regulations implemented. But again, once those climate change regulations are also going to be challenged in the court, and that's going to be a fight that goes on for a long time after he's gone.

[Jeffrey Toobin]

I think Ryan raises. He raises one, and I just want to raise the other. I think all sorts of environmental efforts that the Obama administration is doing, starting with climate change, but not limited to climate change, are, will be before the courts. And the other is net neutrality. The FCC passed an important new net neutrality law that is going to be challenged in the courts as well. So that's another. Those are two more areas where the courts will be handling Obama's legacy.

[Dorothy Wickenden]

Okay, thank you both very much. Jeffrey Toobin and Ryan Lizza are staff writers at the New Yorker. Jeff's most recent book is the the Obama White House and the Supreme Court. This has been the political scene from the New Yorker. This podcast is produced by Jill Dubeuff and Alex barron. For new yorker.com I'm Dorothy Wickenden.

[David Remnick]

Right now, we are living through some of the most tumultuous political times our country has ever known. I'm David Remnick, and each week on the New Yorker Radio Hour, I'll try to make sense of what's happening alongside politicians and thinkers like Cory Booker, Nancy Pelosi, Liz Cheney, Tim Waltz, Ketanji Brown Jackson, Newt Gingrich, Robert F. Kennedy Jr. Charlemagne, tha God, and so many more. That's all in the New Yorker Radio Hour. Wherever you listen to podcasts.

[Ryan Lizza]

From prx.