Drudge Retort: The Other Side of the News
Thursday, August 07, 2014

Ed Kilgore, Washington Monthly: The most important thing to understand is the vast gap between the number of undocumented people in this country and the federal government's resources for detecting, arresting, prosecuting and deporting them. "Prosecutorial discretion" is not simply a convenience, it's essential. DACA guides that discretion, and so would any DACA expansion. Beneficiaries, existing and prospective, do not receive any formal "legalization," but simply a temporary assurance enabling them to function and to work. And any such assurance could be instantly rescinded, by this or future presidents.

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tonyroma

 

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Action or inaction by Obama in the absence of congressional activity is a policy decision with very large implications. He cannot escape it, and the status quo is hardly managable, as we supposedly all agree.

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This is a political argument (some are) trying to blow up into a constitutional argument (a frequent recent habit of Obama's critics, as I noted in a post on Mickey Kaus yesterday). If as Douthat suggests, Obama is trying to unfairly hijack immigration policy so that "liberal side of the argument" wins, what is it about the "conservative side" -- which is increasingly focused on near-universal deportation of the undocumented -- that can no longer be advanced? Do all the Republicans howling for deportations right now not mean what they are saying? Is herding someone towards the border in a truck or train car after taking away her DACA card that much more "awful" than deporting her without one? This strikes me as the complaint of a poker player with a really bad hand saying it's unfair to call his bluff.

In any event, this argument is finally proceeding beyond sloganeering into reality, which is a signal advance for the long-stalled immigration debate in this country.


The argument here isn't as much with the Constitution as it is with reality. As has been posted by myself, there is no way that we currently have the means to enact the bill the House GOP just passed. The money isn't there, the infrastructure and means aren't there, and it's quite practically impossible to deport the undocumented immigrants currently living inside the US borders, not to mention the negative consequences it would wreak upon our domestic economy.

#1 | Posted by tonyroma at 2014-08-06 10:54 PM | Reply | Flag:

An agent was killed by two illegal immigrants that have come into the US 4 times and have been deported. Its felony to be deported twice with 2 years in jail.

Is it really that hard to put people behind bars?

Is it really that hard to enforce the laws that are in the books?

By not doing so, it enables more illegals immigrants to try, do you disagree?

He doesn't need congress to enforce the law.

An agent is dead....... because we don't enforce the law, how many need to die before its enforced, and Kilgore realizes people are dying because of it?

Americans across the board want the laws in the books to be enforced....

The smartest man in the room better figure out how to do it.

#2 | Posted by AndreaMackris at 2014-08-06 11:28 PM | Reply | Flag:

"Americans across the board want the laws in the books to be enforced...."

Probably only the laws they don't break themselves.

#3 | Posted by REDIAL at 2014-08-06 11:58 PM | Reply | Flag: | Newsworthy 2

Is it really that hard to put people behind bars?
Is it really that hard to enforce the laws that are in the books?
#2 | Posted by AndreaMackris

Is it really easier to lick the boots than wear them?

#4 | Posted by snoofy at 2014-08-07 04:52 AM | Reply | Flag: | Newsworthy 1

Astonishing. Shocking. The legal mind that helped create DACA believes it is legal and justifies it.

#1 No way? How about we start sending by ICE to the pro-amnesty protests and start checking IDs? How about we tell every US employer, in a blanket statement by the President on prime-time television, that law enforcement is going to start showing up unannounced at businesses believed to be using illegal aliens as workers with the intention of rounding up the illegal aliens and fining the employer $50,000 for each illegal alien found to be in their employ. Any law enforcement agency, from city cops to the feds, will receive $5,000 of that $50,000 for their operating budget and the remaining $45,000 will be split between the cost of deportation and an increase in border security. 3 violations at any one facility, farm, ranch, store, etc...will result in the incarceration of the facility manager.

You think the local sheriff in Podunk, USA can't use $5,000 in his operating budget? You think the profit margin of a lettuce farmer in Yuma has enough wiggle room to pay the fines associated with the deportation of 100 migrant workers? The answer to both is NO. No jobs = no immigration. Problem solved.

#5 | Posted by MUSTANG at 2014-08-07 07:52 AM | Reply | Flag:

"#1 No way? How about we start sending by ICE to the pro-amnesty protests and start checking IDs? How about we tell every US employer, in a blanket statement by the President on prime-time television, that law enforcement is going to start showing up unannounced at businesses believed to be using illegal aliens as workers with the intention of rounding up the illegal aliens and fining the employer $50,000 for each illegal alien found to be in their employ. Any law enforcement agency, from city cops to the feds, will receive $5,000 of that $50,000 for their operating budget and the remaining $45,000 will be split between the cost of deportation and an increase in border security. 3 violations at any one facility, farm, ranch, store, etc...will result in the incarceration of the facility manager."

Fine, now go sell that idea to the Republican Party. You'll be lucky if you aren't chased out of town. Republicans don't want to do anything about illegal immigration, they just want to complain about it. It's an issue they think they own, they do right up until they realize that they are the employers we're talking about, then not so much.

#6 | Posted by danni at 2014-08-07 08:14 AM | Reply | Flag: | Newsworthy 1

I'm not a Republican, Danni. They don't like me anyway. My stance on various social issues keeps me from being on their team.

On the other hand, Danni, there isn't a snowball's chance in HELL that the President would utter anything CLOSE to what I just advocated. He and the DOJ are on record as being opposed to Joe Arpaio's deputies detaining illegal aliens, claiming that state and local jurisdictions have no authority to do so and that they will not accept those in custody from local authorities. Obama wants illegal aliens in the US because they will breed children who vote Democrat (and because he's a corporate whore). Republicans want illegal aliens in the US because they are all corporate whores (and because they hope to win some over to vote Republican). Both have the same two items on their agenda, they just weigh them differently. NEITHER WANT TO SOLVE THE PROBLEM.

#7 | Posted by MUSTANG at 2014-08-07 08:35 AM | Reply | Flag:

and fining the employer $50,000 ... law enforcement agency,..., will receive $5,000 of that $50,000 for their operating budget 3 violations at any one facility, farm, ranch, store, etc...will result in the incarceration of the facility manager.

You think the local sheriff in Podunk, USA can't use $5,000 in his operating budget? No jobs = no immigration. Problem solved.

Great idea mustang. I'm pretty sure all those lettuce farmers will quietly increase the pay rate until non-immigrants will be willing to do it. I'm sure the C of Cs,both local and national which support illegal immigration will have no problem with this idea, especially when their members start being dragged off in cuffs. And the local politicians that direct the local sheriffs would be thrilled to see their tax base gutted.

I suggest you send a copy of this to the libertarian wing of the GOP and see how quickly even those guys jump on it.

BTW, why the just the facility manager and not the Board of Directors and owners as well? Or do you really believe local managers make all the decisions?

#8 | Posted by northguy3 at 2014-08-07 07:50 PM | Reply | Flag:

It's an issue they think they own, they do right up until they realize that they are the employers we're talking about, then not so much.

#6 | Posted by danni

Or until an immigrant confronts them with the reality of the situation.

Then they Run Paul Run!

#9 | Posted by donnerboy at 2014-08-07 08:30 PM | Reply | Flag:

Danni wrote:

"Republicans don't want to do anything about illegal immigration, they just want to complain about it. It's an issue they think they own, they do right up until they realize that they are the employers we're talking about, then not so much."

Right! They are all hot air.

All of you nit wits:

If you don't check the restaurant you patronize to see there are no illegals working there you are the problem.

If you buy meat and don't check whether it was butchered or packaged by an illegal you are the problem.

If you buy vegetables and don't check to make sure that they weren't planted, cared for, and picked by illegals you are the problem.

If you bought a computer and didn't check to see if it was assembled by US citizens you are the problem. Yes, Fortune 500 companies subcontract to companies who employ illegals. Shouldn't they be shut down and their assets seized?

You don't have the balls to go against your corporate masters. You are pathetic losers. That is the problem.

They came here for a better life working for your slimy corporate masters. They were family people and they brought their children at great expense. Their children grew up as Americans. And now you want to expel their children to a place they have never known. What is wrong with you? What kind of moral degenerates are you? You do not belong here in the land of the free and the home of the brave. Go away!

#10 | Posted by TenMile at 2014-08-07 10:10 PM | Reply | Flag:

Once pot becomes legal we are going to have huge amount of space in prisons and the people that make money off seeing that there is a constant stream to keep those prisons full will need a new crime to take there place. I am beginning to think it will be illegal entry into the US that takes the place of pot convictions. Those that have been here will get to stay but without citizenship so they can not vote and anyone new will go straight to jail. Two problems solved Dems don't get new voters and the prisons get to stay full and make the politicians "look" tough on crime and border security.

#11 | Posted by THomewood at 2014-08-08 12:44 AM | Reply | Flag:

#8 If you look at the Big Question thread, I actually expound a bit on my plan for solving the issue. I target the facility manager initially because YES, in many cases local managers DO have the hiring/firing authority and HR works for them , especially when we're talking about the industries most likely to hire illegal aliens, such as agriculture, meat processing, construction, landscaping, etc... I do, however, think that repeated violations of a single facility should result in charges being filed against the next echelon, be that a regional manager or corporate director, depending on the size of the corporation (for instance, if I found out that a local CNN affiliate had hired an illegal as a janitor, I wouldn't seek to arrest Ted Turner...use common sense).

The end goal is to eliminate those things that make them want to come here illegally. Jobs, free education, welfare...whatever it is. Then you make a path to legal citizenship that is easier and less expensive than it is today, but not easy and free. Liberals keep shouting "We need immigrants! Waah!" and they're right, but we need LEGAL, lawful, tax-paying immigrants.

#12 | Posted by MUSTANG at 2014-08-08 09:24 AM | Reply | Flag:

To the actual point of the thread....

DACA goes WAY beyond selective enforcement. It's enactment of the DREAM Act by Executive fiat.

#13 | Posted by JeffJ at 2014-08-08 09:24 AM | Reply | Flag:

It's enactment of the DREAM Act by Executive fiat.

No it isn't because it isn't permanent and can be rescinded at any time. The government cannot immediately deport all undocumented immigrants and it has to decide who and what is enforced at any particular time. Giving temporary status to immigrants is both prudent and rational through creating records of names and locations of these people.

DACA is "governing" not creating law through the executive.

#14 | Posted by tonyroma at 2014-08-08 09:30 AM | Reply | Flag:

No it isn't because it isn't permanent and can be rescinded at any time.

Laws can be repealed at any time as well through the legislative process.
The Executive branch can't create law out of whole cloth, even if it's only 'temporary'.

If that were the case, president Romney could have ordered the IRS not to collect taxes on ANY capital gains. According to your logic that would be OK because it would only be temporary and the next president could rescind it. Going further, after Romney's term, President Hugo Warren (D) could decree that the Federal minimum wage to $20/hr. What they hey, it's only temporary.

This is not how our government is structured. This is not the rule of law. You are defending dictatorial powers on the premise that the next dictator can just undo the actions of the current dictator.

If Obama can enact the DREAM Act, or some version of it, without it passing congress then why even have a congress? If ACA can be changed, as a matter of whim and routine, on the fly, why bother even writing the law in the first place?

#15 | Posted by JeffJ at 2014-08-08 09:53 AM | Reply | Flag: | Newsworthy 1

Mustang hit on the head – again – fines, raids, etc. but I would even add a bounty program, $25 a head. When you show people what kind of behavior will be tolerated they adjust. When you give an inch, they take a mile and all you do is encourage more of the same. (What was that definition of "insanity" again? Something about doing the same thing and expecting a different…)

#10 – the violins are playing your song. Yes, Yes, we'll all starve and die if the ILLEGALs aren't here. $15 heads of lettuce, our yards will turn into jungles, who will wash the dishes OMG!

When I was growing up in Washington State it was common to shuttle bus loads of high school kids to fields to help farmers harvest their crops. How about using welfare recips, the national guard, even the military, geesh – try a little imagination – or just cry the sky is falling.

These people need to go back to their own country and instigate change there. The more you make America the relief value of every poor immigrant the more you are just prolonging a bad situation for the other millions of their brethren.

#16 | Posted by RADICALRANDY at 2014-08-08 10:03 AM | Reply | Flag:

An agent was killed by two illegal immigrants that have come into the US 4 times and have been deported. Its felony to be deported twice with 2 years in jail.
Is it really that hard to put people behind bars?
Is it really that hard to enforce the laws that are in the books?
By not doing so, it enables more illegals immigrants to try, do you disagree?
He doesn't need congress to enforce the law.
An agent is dead....... because we don't enforce the law, how many need to die before its enforced, and Kilgore realizes people are dying because of it?
Americans across the board want the laws in the books to be enforced....
The smartest man in the room better figure out how to do it.

#2 | Posted by AndreaMackris

Where to begin shredding this short sighted tirade? Yes, this is a sad event but in no way shape or form an example of typical illegal immigrant behavior. I am not aware of the details of the case you are talking about though so I don't feel comfortable in it's specifics...

Yes, Andrea it is that hard to put people behind bars... The prison system is full of them and bursting at the seems. If the choice is prison or deportation, I believe most Americans would rather deport them than imprison them for coming into this country illegally than pay for their trial and imprisonment.

Yes, it is that hard to enforce the laws on the books. There are not enough officers to begin to do it and definitely not enough space to imprison people - mainly due to the 'War on Drugs'. Prison isn't the solution. It's easy to spout though.

Yes, he DOES need congress to enforce the law. Congress says where the funds go and determines what the funds are. So if you want him to enforce all the laws we need to quadruple our police (making us truly a police state) and our court and prison system as well.

The idea that American's across the board want the 'laws in the books' to be enforced is idiotic. Even if we are talking about just Immigration laws we know that isn't true - the country is clearly split. If we start talking about things like EPA, FCC, Drug, FDA, ATF type laws (not their regulations but the laws) it's doubly true.

#17 | Posted by GalaxiePete at 2014-08-08 12:13 PM | Reply | Flag:

Always deliberately framing the wrong problem. The problem is not visitors and tourists. The problem is massive unemployment. The answer is heavy fines and even dissolution of Corporations which hire illegal aliens. There is also a law in this country that the President and Federal Reserve are responsible for keeping unemployment at or below 3%. This law (Humphrey-Hawkins) is being ignored, just like our immigration laws. But there is no plan to even repeal Humphrey-Hawkins for fear it will make the public aware of the law.

#18 | Posted by nutcase at 2014-08-08 02:32 PM | Reply | Flag:

The Executive branch can't create law out of whole cloth, even if it's only 'temporary'.

What you call "creating law" isn't what the SCOTUS calls it:

Experts agree that the president has wide discretion to decide which migrants to target for deportation under the law enforcement theory of prosecutorial discretion. There are roughly 11 million immigrants in the U.S. illegally and officials have to prioritize which ones to remove. The Supreme Court reaffirmed that wide latitude in the 2012 ruling Arizona v. US, in which the justices said key provisions of Arizona's strict immigration law ran afoul of federal supremacy in the area.

"Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all," wrote Justice Anthony Kennedy in the majority decision, joined by four other justices.

The Center for American Progress, an influential liberal think tank, argued in a July 2014 brief: "Even in the civil context, the Supreme Court has made clear that 'an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.' The Court has repeatedly affirmed the long-standing principle that the executive branch has virtually unfettered discretion in deciding how and whether to enforce the law against individuals."

Supporters of expanding deferred action point out that the concept existed before DACA: previous deferred action grants for humanitarian cases permitted recipients to obtain work authorization for the period of the deferral, with the government reserving the right to take away that status at its discretion. Therefore it wouldn't be a brand new category; it'd expand an existing category.

"Longstanding law already allows for individuals who are granted deferred action to gain work authorization," John Sandweg, former acting general counsel at the Department of Homeland Security from 2012 to 2013, told the Washington Post's Greg Sargent. "There was a longstanding, preexisting regulation that governs who gets work authorization; deferred action recipients were included in that regulation -- a decision that was made long before this administration." talkingpointsmemo.com

#19 | Posted by tonyroma at 2014-08-08 05:04 PM | Reply | Flag:

Further:

Margaret Stock, a Republican immigration lawyer and a Federalist Society member, notes that such [abuse of office] accusations don't appreciate that all this is fully authorized by those laws. "The Immigration and Nationality Act and other laws are chock-full of huge grants of statutory authority to the president," she explains, a point also emphasized by the nonpartisan Congressional Research Service in its 2013 brief. "Congress gave the president all these powers, and now they are upset because he wants to use them. Other presidents have used the same authority in the past without an outcry."

In fact, notes Stock, he could go even further and offer asylum to the Central American kids lining up at our borders, instead of sending them back as he has been promising to do. Section 207 of the INA gives him the authority to declare a humanitarian emergency and hand refugee status to all of them – and then some. And this wouldn't be unprecedented, either.

The United States did this as part of Operation Pied Piper to accommodate fleeing children from World War II and then Operation Pedro Pan in the 1960s to provide a safe haven to Cuban kids. washingtonexaminer.com


This is why I detest abject partisanship that completely ignores the GOP's own standing on many of the issues Obama is now being called an imperialist tyrant over. The lack of memory by GOP sycophants is as appalling as their naked opposition to the types of governing their own presidents have done in the recent past without a peep from the party.

#20 | Posted by tonyroma at 2014-08-08 05:23 PM | Reply | Flag:

#19 and #20

What you are talking about isn't discretionary enforcement. There's a difference between limiting the number of deportations (you cited removals) due to limited resources and going to great length to determine who does and doesn't qualify for 'temporary' amnesty based upon a very clear and detailed set of criteria when no such criteria exists in actual statute. Add in the arbitrary granting of work permits when those who are being given these permits don't meet the statutory requirements, and.

This is the Executive Branch creating its own set of laws out of thin air and you would NEVER accept even a fraction of this from a Republican president.

#21 | Posted by JeffJ at 2014-08-08 06:24 PM | Reply | Flag:

Sorry Jeff, Margaret Stock is a much more learned authority than you are. Read her words and form your argument against them. I'm only reporting what this Federalist Society member rightly states and the Congress has already admitted in its non-partisan brief that you obviously haven't read.

You're wrong and historically wrong too. Your argument is idiotic. Obama hasn't come close to reaching the limits established by presidents and Congresses past.

#22 | Posted by tonyroma at 2014-08-08 06:30 PM | Reply | Flag:

Obama hasn't come close to reaching the limits established by presidents and Congresses past.

#22 | POSTED BY TONYROMA

What I am predominantly reacting to is what he is signaling he intends to do by the end of summer. Apologies if that wasn't made clear.

If he chooses to go that route he will be granting amnesty to as many as 5 million Iwords without accompanying legislation. If he follows through then he will vastly exceed limites established by presidents and congresses of the past.

What he did in '12 was effectively implement the DREAM Act on a limited scale. It was done for political purposes IMO.

#23 | Posted by JeffJ at 2014-08-08 06:39 PM | Reply | Flag:

If he chooses to go that route he will be granting amnesty to as many as 5 million Iwords without accompanying legislation. If he follows through then he will vastly exceed limites established by presidents and congresses of the past.

What he did in '12 was effectively implement the DREAM Act on a limited scale. It was done for political purposes IMO.

Posted by JeffJ at 2014-08-08 06:39 PM | Reply

He has absolute constitutional power to grant Amnesty to 1 or 5 MILLION Undocumented. That's his decision.

#24 | Posted by LarryMohr at 2014-08-08 06:42 PM | Reply | Flag:

Jeff...

Let me state this clearly: There in not now, nor ever has been any statutory LIMIT on the number of people that executive immigration orders can impact. If you think there is, then find it in the law. You won't, again, as Ms. Stock has set forth.

You are arguing politics, not statutes and not the law as its been interpreted by the Congress and Courts through the years, long before Obama became President.

"Congress gave the president all these powers, and now they are upset because he wants to use them. Other presidents have used the same authority in the past without an outcry." …

#25 | Posted by tonyroma at 2014-08-08 06:54 PM | Reply | Flag:

Read this:

Most accept that the discretion that the executive branch enjoys in enforcing immigration law is as broad as what prosecutors enjoy in criminal law. And the reason is the same: More offenders than means to prosecute makes drastic prioritization necessary. But conservatives argue that failing to prosecute is not the same as legalizing, the further step that the president would be taking by issuing work permits.

But this is incorrect. Until Congress actually passes a law issuing permanent residency, nothing that Obama is suggesting would prevent future presidents from stripping these folks of their temporary status and deporting them. So an executive action falls short of "legalization" or "amnesty.">

Moreover, offering work permits isn't some further step. It's part of the deferral process. Once the president officially defers action against some folks (or offers them parole-in-place, which allows them to live in the United States with oversight) they automatically become eligible for work authorization under the Immigration Reform and Control Act of 1986 and driver's licenses under the Real ID Act of 2005.

This might seem crazy to anti-immigration hawks, but it makes good sense. Letting out-of-status foreigners stay is likely cheaper than deporting them. And if they are going to stay, it is far better to give them the legal means to earn their keep rather than seek handouts on the street or from the government. washingtonexaminer.com


I don't use too many Washington Examiner links, but when the shoe fits....

#26 | Posted by tonyroma at 2014-08-08 06:58 PM | Reply | Flag:

Tony,

The problem I have with legal reasoning you are citing is this:

Where does it end?

My understanding of selective enforcement is a lack of enforcement, or a lack of action due to limited resources. DACA is a wholesale change of policy and it takes shape in the form of action being taken on the part of the government.

I go back to my analogy above - how is this any different from a future Republican president giving amnesty on paying capital gains taxes for certain groups of people who met certain favored criteria by that particular executive administration?

#27 | Posted by JeffJ at 2014-08-08 11:08 PM | Reply | Flag:

Where does it end?

It ends when Congress passes a law that would establish an immigration policy that is fully enforceable in a practical manner, precluding the executive from such an expanded role in discretion. You still don't get it. Congress had abdicated their role in so many different ways that many wrongly think Obama is doing something far out of bounds when he isn't. This is nothing unlike Congress shirking their war power responsibilities, ceding tremendous power to the President. The Democrats would have passed immigration reform years ago, but the right doesn't understand that the majority of our undocumenteds are here to stay and they always have been. The only thing Congress will do is kick the can down the road like they did in 1986 with Reagan and a GOP-dominated Congress. Laws like the House passed are physically and fiscally impossible to enforce, so why even fake the public into believing that it's credible legislation when it offers no practical solutions for dealing with our very real problems?

Nothing has changed with the interpretation of our current laws, and both the 1986 and 2005 laws cited were championed by Republicans more than Democrats, but that doesn't matter. There used to be a day when both parties would seek real solutions that tried to address actual problems as they exist in reality. One side would win and everyone tried to make it work, and if it didn't, the party responsible would pay in the next election or the laws would change to address their shortcomings. No one tried to intentionally poison the well just for political sake on every single issue by placing everything in a false zero-sum metric that makes governing impossible as well as unmanageable.

The chickens have come home to roost and it isn't solely Obama's fault. The President is trying to make things work for all Americans, not just his party or his constituency. W started to recognize this after 2004 and made many decisions differently than he would have during his first term. But precedence is not on your side not because I want it that way, but simply that's the way Congress has made it through their own inaction and abdication in legislating a workable law that would tie the President's hands.

#28 | Posted by tonyroma at 2014-08-08 11:40 PM | Reply | Flag:

Tony,

You could have saved yourself a lot of keystrokes and boiled your answer down to:

It ends when the GOP capitulates to an immigration bill to Obama's liking - a bill that he will still selectively enforce, just like ACA. In the absence of such a bill, Obama is entitled to do whatever he wants without any semblance of constraints.

#29 | Posted by JeffJ at 2014-08-09 09:15 AM | Reply | Flag:

It ends when the GOP capitulates to an immigration bill to Obama's liking

You've got your Constitution wrong again. The GOP doesn't have to capitulate to Obama, they only have to reach agreement with the Democrats in Congress beyond that needed to uphold any veto. The same as its always been.

Again, it's called governing and making compromises. The Democrats haven't forwarded anything but what W and the GOP proposed almost a decade ago. It's the Republicans fault that they allowed the extreme to take over and stop needed progress.

#30 | Posted by tonyroma at 2014-08-09 12:06 PM | Reply | Flag: | Newsworthy 2

The absence of agreement with congressional Democrats doesn't translate to a blank check for Obama to do whatever he wants.

#31 | Posted by JeffJ at 2014-08-09 04:45 PM | Reply | Flag:

Tony,

I don't mean to come across as snide. I've been drive-by blogging the past couple of days and have only had time for some terse posts.

#32 | Posted by JeffJ at 2014-08-09 05:51 PM | Reply | Flag:

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