Editor’s Note – It’s the rule-of-law Mr. Obama! Okay, maybe not for the Obama and Clinton types who rule by fiat and expect you to take the punishment and just ask for another one.
Fortunately we have Texas, a state none-to-pleased with Obama’s unilateral executive orders, especially on illegal immigrants and numerous suits and attacks on that state’s government and a court system with a spine. They had Judge Andrew Hanen, a sober and sane judge who ordered Obama’s DHS to stop its unilateral deportation amnesty and support scheme.
In December, 2014, Texas and 25 other states, including North Carolina, filed a lawsuit in the Southern District Court of Texas seeking to block both DAPA and expanded DACA. The main grounds for their suit were the costs of issuing driver’s licenses and other associated costs of giving the undocumented immigrants legal status. Other issues being considered included exceeding executive power, failure to adhere to rulemaking procedures, and standing — the right of the states to challenge federal immigration policies.
On February 16, 2015, Judge Andrew Hanen issued a temporary injunction blocking both programs from going into effect. Current DACA requirements and two-year terms were supposed to remain unchanged and DAPA has not been implemented. (Read more here at the National Law Review.)
And then the judge had to reprimand the DOJ lawyers:
A federal judge in Texas on Tuesday angrily denied the federal government’s request to allow President Obama’s immigration executive actions to proceed, even as an appeals court signaled that it might disagree with the judge when it takes up the issue next week.
Judge Andrew S. Hanen of Federal District Court for the Southern District of Texas, in Brownsville, refused late Tuesday night to lift the injunction he had placed in February on the president’s program, saying that to do so would cause irreparable harm. (Read more here.)
Then, that ruling was upheld by the 5th Circuit Court of Appeals, so now what is Obama and his Department of Justice (for friends only, weaponized for enemies) want to appeal to the Supreme Court:
President Obama will ask the Supreme Court to clear the way for his long-delayed immigration overhaul, administration lawyers said Tuesday, setting up another high-stakes legal contest in the nation’s highest court over the fate of one of the president’s signature achievements.
The Department of Justice said in a statement that it will appeal a federal appeals court ruling that blocked Mr. Obama’s plan to provide work permits to as many as five million undocumented immigrants while shielding most of them from deportation.
“The Department of Justice remains committed to taking steps that will resolve the immigration litigation as quickly as possible in order to allow DHS to bring greater accountability to our immigration system by prioritizing the removal of the worst offenders, not people who have long ties to the United States and who are raising American children,” said Patrick Rodenbush, a spokesman for the Justice Department. “The Department disagrees with the Fifth Circuit’s adverse ruling and intends to seek further review from the Supreme Court of the United States.” (Read more here at the NY Times.)
We hate to break it to you Mr. Rodenbush, what your team is trying to do is anti-constitutional…but you really knew that already didn’t you? It’s called Article I, Section 8, Clause 4: Naturalization and was confirmed as follows in 1795:
Congress claimed exclusive authority over naturalization by establishing new conditions—”and not otherwise”—for aliens “to become a citizen of the United States, or any of them.” In Chirac v. Lessee of Chirac (1817), the Supreme Court affirmed that “the power of naturalization is exclusively in congress,” notwithstanding any state laws to the contrary. (Read extensive summary here at the Heritage Foundation.)
Once again, a co-equal branch of our federal government had to intervene and set the Obama administration straight. In fact, the appeals court used Obama’s very own words from the many times prior in which he said he could not do what he eventually did anyway – another end run around Congress. Read more here at Politico’s “Appeals court keeps block on Obama immigration actions.”
So much for the imperialism of this Presidency, welcome back rule-of-law! SCOTUS must continue to find for the constitution in this latest appeal as well.
Judges use Obama’s own words to halt deportation amnesty
A federal appeals court said President Obama’s own words claiming powers to “change the law” were part of the reason it struck down his deportation amnesty, in a ruling late Monday that reaffirmed the president must carry out laws and doesn’t have blanket powers to waive them.
The 2-1 ruling by the 5th Circuit Court of Appeals punctures Mr. Obama’s immigration plans and is the latest in a series of major court rulings putting limits on the president’s claims of expansive executive powers to enact his agenda without having to get congressional buy-in.
In an opinion freighted with meaning for the separation of powers battles, Judge Jerry E. Smith, writing for himself and Judge Jennifer Walker Elrod, singled out Mr. Obama’s own claim that he acted to rewrite the law because Congress wouldn’t pass the bill he wanted.
The key remark came in a speech in Chicago just days after his Nov. 20, 2014, announcement detailing his executive actions. Fed up with a heckler who was chiding him for boosting the number of deportations, Mr. Obama fired back, agreeing that he’d overseen a spike in deportations.
“But what you are not paying attention to is the fact that I just took an action to change the law,” the president said.
The two judges said the Justice Department failed to explain away Mr. Obama’s remarks.
“At oral argument, and despite being given several opportunities, the attorney for the United States was unable to reconcile that remark with the position that the government now takes,” Judge Smith wrote.
Whether Mr. Obama acted within the law is the crux of the case.
Texas and 25 other states, which sued to stop the amnesty, argue Mr. Obama went beyond the boundaries set in the Immigration and Nationality Act, which sets out specific instances where, on a case-by-case basis, the Homeland Security secretary can waive penalties and allow illegal immigrants to stay, granting them work permits which then entitle them to Social Security cards, tax credits and state driver’s licenses.
A federal district court in Texas agreed with the states, halting Mr. Obama’s policy, and now an appeals court has also sided with the states.
Writing in dissent on Monday, Judge Carolyn Dineen King dismissed Mr. Obama’s claim that he changed the law, saying presidents often use imprecise language when talking about laws. She said Mr. Obama wasn’t making a legal argument in his response to the heckler.
Mr. Obama’s plan, known officially as Deferred Action for Parental Arrivals, or DAPA, was intended to grant up to 5 million illegal immigrants a proactive three-year stay of deportation and to give them work permits, allowing them to come out of the shadows and join American society — though they were still considered to be in the country illegally. To qualify, illegal immigrants had to be parents of U.S. citizens or legal permanent resident children.
The president characterized his plan as a use of prosecutorial discretion, reasoning that he was never going to deport them anyway, so they should be granted some more firm status.
But the court ruled that he not only didn’t follow the usual rules in making a major policy change, but that his claims of power to grant tentative legal status to a massive class of people went beyond the waiver powers Congress granted him in the law.
Monday’s decision is already reverberating across the presidential debate, with Hispanic-rights activists insisting Mr. Obama file an immediate appeal to the Supreme Court, and vowing to make immigration an issue in the 2016 election.
Last weekend, Senators Ted Cruz and Mike Lee forced every senator to vote, on the public record, regarding the constitutionality of President Obama’s unilateral decree of effective amnesty for millions of illegal aliens. The resulting Republican establishment hissy fit further confirmed something I’ve been arguing here for some time: Republican leaders in Washington endorse President Obama’s amnesty policy.
Their stated opposition to the imperial manner of the policy’s imposition is poseur stuff. When push comes to shove, when the time comes to do something about presidential lawlessness, what do we get? Childish tantrums over being forced to work on a mid-December weekend — the poor dears having spent a whopping 135 days in session this year . . . and, by last Saturday, facing the crushing burden of another two or three days’ waltzing between the Hill and the nearest studio before their next three-week vacation.
We get party leaders who, despite having decried Obama’s lawlessness during the recent midterm-election campaign, actually whipped against a legislative rebuke of executive lawlessness. We get 20 mindboggling Republican votes in favor of the president’s usurpation of Congress’s legislative authority . . . even as GOP leaders look voters in the eye and promise to persuade the courts that the president has overstepped his constitutional bounds. (I don’t know how many of these guys have ever appeared before a federal judge. “Your Honor, I rise today to urge that this court condemn the president of the United States for taking actions I have voted to endorse and pay for with public funds.” Good luck with that.)
As long as we’re talking about epic insults to our intelligence, special recognition should go to the GOP establishment claim that, by forcing elected legislators to take an accountable vote, Cruz and Lee enabled Democrats to secure confirmation of objectionable Obama nominees.
The story goes like this: By orchestrating a “point of order” vote to question the constitutionality of Obama’s decree, Cruz and Lee broke what Fox News gently called an “informal agreement” that our esteemed senators could take the weekend off. Already you’re getting the picture, right? According to GOP leaders, Congress should not only refrain from taking action on an outrageous abuse of presidential power that drove millions of Americans to support Republicans in the midterm elections, but should do so based on an unenforceable wink-wink deal with that paragon of probity, Harry Reid.
But it gets better: The miffed senators huff that, because Cruz and Lee unexpectedly gave the majority leader weekend time to fill, Reid used it to move forward with a number of controversial Obama nominees to the federal bench and high executive-branch posts — nominees Republicans claim they had shrewdly planned to stall. You’re to believe these nominees got confirmed later in the week because Cruz and Lee, former Supreme Court clerks and highly accomplished lawyers, got outfoxed on parliamentary procedures.
First, a little history: It is because of senior Republicans that President Obama has had so many judicial slots to fill. During the Bush administration, when Democrats made unprecedented use of the filibuster to block conservative judicial nominees, there was a move to do away with the tactic.
Beltway Republicans, however, saved the day for Democrats with the infamous “Gang of 14” deal. It not only decisively undermined the nominations of several worthy Bush nominees; ultimately, Democrats were also able to keep some key slots open until they were back in control of the Senate and the White House. Naturally, Reid then did exactly what these GOP leaders had stopped Republicans from doing: He ended the filibuster so that Democrats could slam Obama’s controversial nominees through with a bare 51-vote majority.
And that’s not all. In 2011, Republican leadership also joined with Democrats to eliminate the confirmation process entirely for some 400 high-level agency positions. That is, Republicans gave Obama carte blanche to fill fully one-third of the federal bureaucracy’s top tier without any vetting at all by the Senate.
So now the same guys who have spent the last decade giving away the confirmation store — the same guys who, in recent weeks, have blithely allowed Obama nominees complicit in the Benghazi debacle to sail to confirmation by voice vote — want you to believe they suddenly had a strategy, this week, to run out the clock and thus stop Obama from installing more progressive ideologues. You know, because after going to the trouble of eliminating the filibuster precisely so he could get Obama nominees confirmed, of course Senator Reid was going to stand idly by while Republicans stalled nominees during his few remaining days in control.
You don’t have to rely on common sense to know Republican leaders are snowing you. Reid’s office made the obvious explicit: He always intended to confirm a slew of Obama nominees before allowing the Senate to adjourn.
On December 1, long before last weekend’s immigration debate, The Hillreported Reid’s admonition that he might keep the Senate in session through the week of December 15 in order to, among other things, get Obama nominees confirmed. Moreover, Reid’s communications director Adam Jentleson repeatedly tweeted that Reid had every intention of moving ahead with the nominations before the Senate adjourned. For example, there were these two tweets before last weekend’s amnesty tumult (here and here):
Reid had a plan from the start. Once Republican leaders in the House were done colluding with President Obama and the Democrats to pass the “cromnibus” spending bill — the one that forfeits Congress’s power to block funding for Obamacare and other noxious Obama initiatives for the next year — Reid would team up with GOP Senate leaders equally anxious to get the cromnibus enacted. The majority leader, however, would keep in his back pocket the “tax-extenders” legislation — a grab-bag of Washington special-interest tax breaks — knowing Beltway Republicans, like Democrats, would want to make sure their sponsors were taken care of. By holding the tax extenders until the very end, Reid could rest assured that senators looking to flee the capital for the holidays would make no trouble while Democrats used the new no-filibuster procedure to blow through the stack of Obama nominees.
The fact of the matter is: The Cruz/Lee point of order on the unconstitutionality of Obama’s amnesty had nothing to do with getting Obama’s nominees confirmed. There was nothing Reid did in moving the nominations forward last weekend that he could not and would not have done to achieve the same objective starting Monday — nothing other than giving his GOP partners in the amnesty project a few strands to weave into a yarn blaming Cruz and Lee for confirming Obama’s nominees, a useful distraction of public attention from the Republican capitulation to Obama’s lawlessness.
If Republicans were serious about stopping the president’s nominees and his systematic non-enforcement of the immigration laws, there would be an easy way to show it. A month ago, Senator Cruz called on Senator McConnell to announce that the Senate will not confirm Obama’s nominees “unless and until the president ends this lawless amnesty.” The soon-to-be majority leader’s response? Crickets.
If, as they claimed, Beltway Republicans really wanted to stop Reid’s rubber-stamping of Obama nominees this week, McConnell could have dramatically one-upped Cruz’s proposal. He could have publicly warned that if the majority leader steamrolled the minority this way, Democrats should expect to get nothing for the next two years — no nominees and none of the accommodations the majority typically accords the minority in the many uncontroversial matters lawmakers deal with. You negotiate by exploiting your leverage, not by relying on the good graces of Harry Reid. Republicans, instead, accommodate Democrats, saving their hardball tactics for use against conservatives who try to force fights GOP leaders have no interest in waging.
If Republicans were serious, they’d use the power of the purse to stop Obama’s lawlessness, and they’d drop the preemptive-surrender declaration that there will be no government shutdowns. Again, that just forfeits their leverage. As we’ve seen, there are no government shutdowns. Even when Leviathan “runs out of money,” more than three-quarters of government operations (including so-called entitlement payments and national-security functions) roll merrily along. And even the temporary cessation of “non-essential” operations is overblown: furloughed “public servants” always end up getting back-pay for the time off — sort of like the vacations the Senate takes.
As the Examiner’s Byron York noted this week, Congress puts numerous riders in spending bills, forbidding the executive branch to expend public funds on all kinds of things — e.g., proscriptions against closing Guantanamo Bay and transferring terrorist detainees to the U.S. In essence, each of these riders dares the president to veto the bill and “shut down the government”; presidents routinely grumble, but they sign the bills — sensibly reasoning that a veto that causes a “shutdown” just to further an unpopular policy would be politically damaging.
Are Republicans really too incompetent to (a) attach a rider denying public funds for lawless, unpopular initiatives like the amnesty decree; (b) explain to the public that they are otherwise lavishly funding the government, and that these sorts of riders are so routine that presidents — including Obama — accept them all the time; and (c) persuade Americans that it would be ridiculous for the president to threaten a government shutdown over such a rider — especially since the government never really shuts down anyway?
I don’t think they’re too incompetent. I think they support amnesty for millions of illegal aliens.
On amnesty, senior Republicans agree with Obama’s ends and they are not much opposed to his means. They inveigh against the illegality of Obama’s amnesty decree but studiously avoid taking real action against it, which keeps the base at bay while the amnesty becomes a fait accompli.
Over the coming months, as Obama’s decree is implemented, the public will gradually become resigned to the unpopular policy. Beltway Republicans anticipate that this will create a more favorable climate for their coveted “comprehensive immigration reform” proposals. Along with their many supporters on Wall Street and in right-of-center media, GOP leaders will try to mollify the base with a storyline: Only by bravely enacting proper legislation can Republicans correct the worst excesses of Obama’s lawless order. Meanwhile, they will finally accomplish the mission: mass amnesty solidified in statutory law. About this, they will duly brag to Hispanic audiences . . . who will duly vote in droves for whomever the Democrats nominate in 2016.
Ted Cruz and Mike Lee are mounting opposition to the plan. That’s why the long knives are out.
Earlier Tuesday, a federal court in Pennsylvania declared aspects of President Obama’s executive actions on immigration policy unconstitutional.
According to the opinion by Judge Arthur Schwab, the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides substantive rights to applicable individuals.
As a consequence, Schwab concluded, the action exceeds the scope of executive authority.
This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States. [I’ve now posted the opinion here.]
The procedural background of the case is somewhat unusual. The case involves an individual who was deported and then reentered the country unlawfully.
In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation.
In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence.
This isn’t the only case challenging the lawfulness of the Obama’s immigration actions. Some two-dozen states have filed suit challenging Obama’s recent immigration policy reforms. Led by Texas, these states claim that the president as exceeded the scope of executive authority in this area.
As I’ve noted before, I’m skeptical of these arguments on the merits (as is Ilya), and wonder whether the states will be able to satisfy the requirements of Article III standing to bring their claims. Yet as this case shows, even if the states don’t have standing, the legality of the president’s actions could nonetheless be decided in federal court.
UPDATE: Here are some additional thoughts on the ruling.
It is quite unusual for a district court to reach this sort of constitutional issue in this sort of case. Indeed, Judge Schwab appears to have reached out quite aggressively to engage the lawfulness of the President’s actions. Based upon the procedural history recounted in the opinion, it appears the court requested briefing on the applicability of the new immigration policies on its own order.
That is, the issue was not initially raised by the defendant in his own defense. As a result of the court’s decision, however, the defendant now has the option of withdrawing his guilty plea and potentially seeking deferral of his deportation under the new policy.
On the merits, I understand the concerns that motivate Judge Schwab’s reasoning, but I am not persuaded. First, it is important to note that the executive branch has exercised a substantial degree of discretion in implementing and enforcing immigration law for decades. Work permits have been issued in conjunction with deferred action for at least forty years. President Obama’s actions are broader in scope, but not clearly different in kind from what his predecessors have done and to which Congress has acquiesced.
It is true, as Judge Schwab notes, that the President’s announced policy identifies broad criteria for deferring removal of individuals unlawfully in the country. This would appear to make the action somewhat legislative, but I don’t think it’s enough to make the action unlawful. The new policy does not preclude the executive branch from revoking deferred action in individual cases and does not create any enforceable rights against future executive action.
It’s no more unconstitutional than a US attorney telling the prosecutors in his office not to prosecute low-level marijuana possession absent other factors that justify federal prosecution.
President Obama’s action may be broader than many are comfortable with, and it is understandably hard to stomach given all the President’s prior statements disclaiming authority to take these steps — but such concerns are rooted in customary political norms, not judicially enforceable constitutional rules.
ADDITIONAL UPDATE: As I think about Judge Schwab’s opinion a bit more, it seems to me to be an advisory opinion. Neither party to the proceeding raised the issue and, as far as I can tell, neither party sought to have the President’s actions declared unlawful. So there was no case or controversy presenting this question.
This could explain the anomalous nature of Judge Schwavb’s disposition of the case: After declaring the President’s actions to be unlawful, he nonetheless issued an order giving the defendant an opportunity to seek to claim the benefit of the new policy (assuming the defendant could demonstrate that he qualifies). In other words, while Judge Schwab declared the President’s actions to be unlawful, he did not set it aside.
Indeed, given that no party was challenging the lawfulness of the President’s action, it’s not clear what authority the court would have had to invalidate the policy.
Even had the court had jurisdiction over this issue, it’s still not clear what sort of relief would be appropriate. Could the court set aside the new executive branch policy? If so, what precisely would that mean? Unless a court is willing to invalidate all deferred action, and order the deportation of all those unlawfully in the country, it’s not clear what it would mean to set aside the President’s directive.
The executive branch would still be able to consider deferred action and provide work permits on a case-by-case basis — and this would leave the executive branch with the authority to prioritize “families over felons” and otherwise effectuate the policy preferences embodied in the President’s actions.
This underscores the point that if Congress is unhappy with the degree of discretion the executive branch enjoys over immigration policy, Congress needs to revise existing immigration laws so as to constrain executive authority.
Editor’s Note – Once again Andy McCarthy has nailed the issue – this time on Obama’s upcoming justification for unilateral action on immigration. To put it simply, prosecutorial discretion as a basis for Obama’s upcoming action is tortured and twisted logic.
On at least 25 occasions, Obama has been recorded telling an audience that he is not king and cannot do what he is now about to do. But alas, even the king can be wrong, all hail the King, for only he can change his mind at a whim and so too history and declare any edict as he pleases because he so much wiser than we the people.
A most arrogant, petulant, and infantile king he may be, but his royal highness is not pleased with how his subjects acted recently and he must strike back with an edict.
In a time when video is a daily thing for everyone and smart phones capture history so easily, don’t be fooled by your lying eyes and ears. That applies to anyone in his government including his paid advisors – after all dude, those videos were so last term, so old!
No, ‘Prosecutorial Discretion’ Does Not Justify Obama’s Lawless Amnesty
Obama’s planned action perverts the meaning of the legal doctrine.
By Andrew C. McCarthy
Can the president make fraud and theft legal? How about assault? Cocaine use? Perjury?
You’d have to conclude he can — and that we have supplanted the Constitution with a monarchy — if you buy President Obama’s warped notion of prosecutorial discretion.
Tonight, Mr. Obama will unveil his executive order granting amnesty to millions of illegal aliens. According to news accounts, the criminal-law doctrine of prosecutorial discretion is the foundation of the president’s legal theory. It is the source of what he purports to be his authority to decree that these aliens have lawful status, a power our Constitution gives only to Congress.
Obama is distorting the doctrine.
As I explain in Faithless Execution (and in columns and posts here, here, and here), prosecutorial discretion is a simple and, until recently, an uncontroversial matter of resource allocation. It merely holds that violations of law are abundant but law-enforcement resources are finite; therefore, we must target the resources at the most serious crimes, which of necessity means many infractions will go unaddressed.
I’ve highlighted the last part because it is the key to understanding how Obama’s amnesty perverts the doctrine.
As is always the case with a well-constructed fraud, Obama’s amnesty has some cosmetic appeal because it derives from some indisputable claims. In the American system, the power to prosecute belongs solely to the executive. Consequently, it is for the president alone to prioritize which law violations will be prosecuted and which will go unaddressed. Congress writes the laws but it has no power to compel the president to enforce them. And immigration offenses, like other law violations, are more plentiful than the police and prosecutorial resources available to carry out investigations, arrests, trials, imprisonment, and deportations.
So President Obama is entirely correct when he says prosecutorial discretion makes it perfectly lawful for him to target finite immigration-enforcement resources against illegal aliens who commit serious crimes while overlooking millions of illegal aliens who violate “only” the immigration laws (plus identity-fraud offenses typically committed as those aliens illegally stay and work here).
Obama, like all presidents before him, has that power. This may be infuriating to those who would like to see the crisis of illegal immigration tackled more energetically. That, however, is a policy dispute; a president is not lawless just because one disagrees with him on policy. If that was all there were to Obama’s order, it would be unremarkable.
But it is not unremarkable. Some simple examples illustrate the difference.
There are also many more fraud offenses committed in the U.S. than there are law-enforcement resources to prosecute them. So federal prosecutors, in an exercise of prosecutorial discretion, will often establish a fraud threshold amount — say, $10,000 – beneath which they will not open a case. But that does not mean you now have a right to steal $9,999.
If police in a big city are overwhelmed with violent crime and focus their attention strictly on murder, maiming, and rape, that does not mean it is now legal to go around punching people in the nose.
There are many thousands of trials, and in them it is not unusual for witnesses to lie. It would not be possible to launch a perjury prosecution against every person who gives false testimony under oath. But this necessary exercise of prosecutorial restraint is not a license to commit perjury — an invitation to lawlessness that would destroy the judicial system.
If the Justice Department decides it is going to target its anti-drug-trafficking resources against big time heroin and cocaine distributors, that does not mean that personal possession and sale of small amounts of those drugs is now legal — or, indeed, that the government should facilitate drug possession and sales.
Prosecutorial discretion means you are not required to prosecute every crime — which, since doing so would be impossible, is just a nod to reality. It does not mean that those crimes the executive chooses not to enforce are now no longer crimes. Prosecutorial discretion has never meant that the passive act of non-enforcement has the legal effect of repealing criminal laws enacted by Congress. And it has never even been suggested, because to do so would be absurd, that under the doctrine of prosecutorial discretion, the executive decision not to prosecute certain crimes means the people who commit those crimes should be rewarded for committing them. That, of course, would only encourage others to commit them on a more massive scale.
Yet that is President Obama’s theory. He is claiming not only the power to determine what immigration laws get enforced and which illegal immigrants get prosecuted — power he unquestionably has. He also claims the power to declare (a) that criminal acts are somehow lawful — that illegal aliens now have a right to be here — just because Obama has chosen not to prosecute them; and (b) that those who engage in this unprosecuted activity will be rewarded with benefits (lawful presence, relief from deportation, work permits, etc.), as if their illegal acts were valuable community service.
That is an utter perversion of prosecutorial discretion and a blatant usurpation of congressional power. Only Congress has the power to repeal criminal laws and confer positive legal benefits on non-Americans.
As you listen to the president try to explain himself tonight, you are going to hear a lot about how his plan is just a sensible exercise of prosecutorial discretion — how he is just using the sparse resources Congress gives him to enforce the law in more efficient ways. It will sound unobjectionable — even appealing.
But understand, it will be lawless and an invitation to waves of law-breaking. Obama is not merely prioritizing crimes; he is equating his non-enforcement of congressional statutes with the repeal of those statutes. He is not merely ignoring some lawbreakers so he can pursue others; he is declaring that categories of non-Americans of Obama’s unilateral choosing have a right to break our laws and be rewarded for it.
That is not prosecutorial discretion. It is a lawless betrayal of the president’s constitutional duty to execute the laws faithfully.
By Denise Simon, Editorial Board – Eric Holder has so much going on in the background as this ‘transparent’ government is clouded in smoke and mirrors, and obstruction of Justice. 300, 000 illegals get to stay in the United States due to a loophole?
It appears loopholes were exposed with the express purpose to keep illegals stateside… forever, with DoJ approval. Let us be honest, this IS a pattern of committing High Crimes and Misdemeanors… it is in direct contravention of law. What say you? America has become a bastion for illegals, implemented by the ‘open borders’ crew. The four corners of our founding document, the United States Constitution is apparently just an old piece of paper and is only used in its original intent when needed under the Holder DoJ.
While much of the focus is on illegal immigration concentrated on those from Mexico, we should also advise our readers that America has a very large illegal population of Somalis and other Middle Easterners and Africans. Cities like Nashville, Minneapolis, Cleveland, Columbus, and Bangor, ME are being overrun by these types of illegals. We already know that Dearborn, Michigan is now its own third-world nation within our borders, and Houston has proven to be a major distribution point as SUA has posted previously.
Deportation Loophole Lets Thousands Live and Work in US Indefinitely
John has been slated for deportation — for the last 20 years. The U.S. government renews his work permit annually. He has a driver’s license, and has started a family and set down roots here, a place he calls home.
But he does not have a green card, or permanent U.S. residency, because the U.S. government says John, who has lived here for about 30 years, is ineligible to call this country his home.
John lives in an indefinite legal limbo, with the threat of arrest by immigration agents ever-present. But he hasn’t been expelled because his removal is on hold.
And his attorney, Jerard González of New Jersey, says his client sees it as preferable to the alternative – permanent expulsion.
“It’s better than being in Russia or Lebanon,” said González, a former federal immigration prosecutor. “He’s here with his wife.”
Hundreds, perhaps thousands, of deportations are delayed every year.
Delayed deportations – known by various names, including “deferred action” – have been part and parcel of U.S. immigration policy for decades, routinely granted under both Democrat and Republican administrations. A work permit and the ability to obtain a driver’s license – two essential things that otherwise are off-limits to undocumented immigrants — often are part of the deal.
This loophole in immigration law has allowed tens of thousands of foreign nationals –whom the United States has rejected for permanent legal residency, commonly referred to as a “green card”– stay in the country for years. Sometimes, like in John’s case, the delay is so long that immigrants marry, have children here, buy homes, and even start businesses.
The loophole has benefited immigrants such as José Humberto and Hilda Jauregui of Peru, whose deportation immigration authorities agreed to suspend for a year on humanitarian grounds — they are the guardians and caretakers of their granddaughter, a 17-year-old U.S. citizen who has leukemia.
And it has helped others with far more controversial cases, such as people whom the U.S. government slated for deportation on grounds that they were involved in terrorism.
Most immigrants trapped in the deportation web never get a delay. Rather, the delay often is granted to those who can afford top attorneys, or those who get the support of, say, members of Congress or the Senate, or who become the subject of a media campaign.
Although González supports the system of delaying deportations in certain cases, he says he has been troubled by some of the people he has seen dodge deportation.
An example, he said, is a Northern Ireland man who served jail time because of activities linked to his membership in the outlawed paramilitary group Irish Republican Army, or IRA.
“I thought about the disparity,” González said. “He gets to stay, but the others are gone – deported — because they didn’t have the pull, didn’t have the political connections.”
How many have benefited is hard to discern. The power to put a deportation on hold is a tool available to, and used by, a variety of agencies and courts with a say on immigration matters, and the practice is marred by inconsistency, gaping holes in data, and cases that languish in suspension for years.
“Deferred action” is part of a parallel immigration universe that has not been part of the national debate, and about which everyday Americans know little, if anything.
From The Shadows to Official Policy
Now, the issue of deferred deportation is moving to the front burner, on the heels of the recent announcement by the Obama Administration that it is suspending removals while it makes a top priority removing immigrants who are criminals or who pose a threat to national security.
Some 300,000 deportation cases that are pending will be reviewed case by case, administration officials say. Low priority deportation cases – those involving undocumented immigrants brought here by their parents, relatives of U.S. citizens, and those with relatives who served in the U.S. military – will be put on hold and perhaps closed.
How it will work, exactly, is still unclear.
The announcement drew the ire of activists and groups who favor strict immigration enforcement. They said the Obama Administration is sidestepping immigration laws and unilaterally granting amnesty.
House Judiciary Committee Chairman Lamar Smith, R-Texas, said the shift is the administration’s “plan to grant backdoor amnesty to illegal immigrants.”
House Republicans plan to hold hearings within a month challenging the new Obama Administration deportation policy.
Smith introduced a bill called the Hinder the Administration’s Legalization Temptation (HALT) Act, which prevents deferring deportations until January, 2013, the end of Obama’s first term.
“The Obama administration should enforce immigration laws, not look for ways to ignore them,” Smith said in a statement. “The Obama administration should not pick and choose which laws to enforce.”
But Rep. Zoe Lofgren, the ranking Democrat on the House immigration subcommittee, said the outrage over deferred deportations ignores the fact that “Deferred action has been a tool used by every president.”
Those who defend delaying deportations view the practice as a necessary antidote to a broken immigration system.
“By and large the [new deportation] priorities are accurate,” Lofgren said. “The resources should be targeted at people who endanger society, and not people who have longstanding ties to the United States and relatives of Americans.”
“How guilty is the six-month-old kid who came here [illegally]?” Lofgren asked. “They did what they were supposed to, they obeyed their parents.”
The Deportation System Has Lacked Transparency
The system of deferred deportations long has been a largely opaque one, with the delays granted by different agencies using different criteria and employing different terms for the action (or lack thereof). Comprehensive data is hard to come by, making it difficult to assess the whole practice of suspending deportations.
DHS data for one category, “deferred action,” shows that an average of slightly over 600 people a year have received this reprieve under the Obama Administration. An average of more than 750 people a year got it in former President George Bush’s last term.
Another category, “cancellation of removal,” shows that nearly 10 years ago, the U.S. cancelled deportation proceedings for roughly 24,000 immigrants, according to the DHS Office of Immigration Statistics.
That number increased for several years after that – to 29,000 in 2003, and peaked at 32,700 in 2004. But deportation cancellations dropped sharply in 2007, from nearly 30,000 in 2006 to just shy of 15,000.
The drop continued steadily under the Obama Administration –which has presided over more deportations than any other– with 8,100 cancellations of deportation cases in 2010.
The longer a person stays in the United States illegally, ironically, the better the chance of getting deportation rescinded.
To qualify for cancellation of deportation, for example, immigration laws require an undocumented immigrant to have lived in the United States no less than 10 years.
Laws also require that the immigrant have no record of problems with police, and that deportation would pose “exceptional and extremely unusual hardship” to a spouse, parent or child who is a U.S. citizen or legal immigrant.
Those who defend delaying deportations say they’re important in a system that is rife with flaws, and in which many immigrants do not get a fair shot to make their case because of a lack of legal counsel.
Proving extreme hardship, for example, said González, the attorney, is difficult.
“It’s the highest standard,” he said.
Groups on different sides of the immigration debate say the way the U.S. has managed deferred deportations has been problematic.
The gaps in the data that is available to the public doesn’t sit well with Lofgren.
The congresswoman said she ran into roadblocks when she tried to find out why deferred action approvals had declined under the Obama Administration.
“I couldn’t get an answer,” Lofgren said of her attempts to get more information. “It’s down, and I have a problem with that.”
There long has been no formal national procedure for handling deferred action requests, said a July memorandum by the Office of the U.S. Citizenship and Immigration Services Ombudsman, repeating concerns it had raised in 2007 about the USCIS’s system of delaying deportation.
“Stakeholders lack information regarding the number and nature of deferred action requests submitted each year,” the memorandum said, “and they are not provided with any information on the number of cases approved and denied, or the reasons underlying USCIS’ decisions.”
“Currently, there are no official, national standard operating procedures for how to process a deferred action request,” it said. “Tracking submissions and releasing the data to the public would improve management of the deferred action process and provide transparency to the public.”
A Valid Reprieve, or Back-Door Amnesty?
Proponents of strict immigration enforcement said deferred deportations undermine respect for immigration laws.
“There’s clearly a need for flexibility in any area of law that people are enforcing,” said Mark Krikorian, executive director of the Center for Immigration Studies, which favors strict immigration policies. “The law is a blunt instrument, providing for a little wiggle room is just prudent.”
“The problem is when that wiggle room, the loophole, becomes the policy,” Krikorian said. “These various means of avoiding deportation is the policy itself.”
The USCIS ombudsman memo described deferred action as a reprieve that is meant to be granted for one or two years.
Deportations have been delayed for caretakers on whom an ill U.S. citizen or permanent resident depends, for people who have been the victims of spousal battery or human trafficking, and people like Haitians, whose homeland was devastated by an earthquake, leaving the already struggling country unable – it was argued – to absorb deportees.
The reprieve given to groups such as the Haitians is called Temporary Protected Status, or TPS.
“It’s not amnesty,” said former immigration commissioner Doris Meissner, who served during the Clinton Administration, and who authored guidelines on delaying deportations. “It’s a case by case review.”
“People are not getting any kind of legal status other than to have enforcement action be suspended temporarily,” said Meissner, a senior fellow at the Migration Policy Institute. “All this does is stop the clock for the moment, but you’re nonetheless in a limbo situation.”
But deferred deportations, critics argue, stretch out too long – allowing many people the United States says are ineligible to live here to build lives here. Critics say it’s a way to game the immigration system.
For many groups, for example, they say, TPS hardly has turned out to be temporary.
“The Liberians had TPS year after year,” Krikorian said, “their kids were born here, graduated college, and got married in this supposed ‘temporary status.”
Hurricane Mitch, he said, occurred in 1998, “but Hondurans still have TPS.”
In September, 2009, DHS Secretary Janet Napolitano announced a two-year suspension of deportation for widows of U.S. citizens who had died before green card petitions for their spouses were approved.
Advocates for the widows had argued that the U.S. was cruel and unfair in trying to deport people who had tried to do the right thing, but had not been able to complete the legalization process because of tragic circumstances.
It become known as the “widow’s penalty.”
In her announcement, Napolitano said: “Smart immigration policy balances strong enforcement practices with common-sense, practical solutions to complicated issues.”
She added that she hoped the two-year reprieve would give the widows – many of whom had lost court appeals — a chance to try to find a means to obtain legal status. She also urged Congress to consider changing the law that called for deporting the widows.
It worked. A month later, Congress passed legislation ending the widow’s penalty.
Suspending Deportations Was Called Critical for Northern Ireland Peace Process
Delayed deportation became a bargaining chip for about a dozen Northern Ireland men who were undocumented in the United States and who had been denied permanent residency after the disclosure that they had served time in British prisons for such things as killings of Northern Ireland police and weapons smuggling for the outlawed paramilitary group the Irish Republican Army, or IRA.
The Clinton Administration said it was suspending their deportation to help the peace process between those who supported British rule in Northern Ireland, and those, like the IRA, and its political arm, Sinn Fein, who opposed it.
Many of the men overstayed visas or entered illegally, and had not disclosed their convictions on immigration applications. They argued that their convictions were not for crimes, as they saw it, but for political issues.
Many of them have married U.S. citizen women and – with work permits that are renewed while they’re in legal limbo – have obtained jobs, driver’s licenses, and even started businesses.
“They’ve been in limbo for 20 years,” said Bruce Morrison, a former congressman who chaired the House immigration subcommittee. “They prefer limbo to leaving.”
“They’re married, they’re working, they’re paying taxes, but they’re deportable,” said Morrison, who has a long record of helping Irish immigrants. “These people are in what is essentially in a parole status.”
Their status was met with discomfort by the Bush Administration, Morrison said. But the delayed deportation status continued.
“They got work authorization and travel authorization under the Bush Administration,” Morrison said. “The Bush Administration considered it to be Clinton’s issue, they never sent them [the men] a note” documenting the extension of the status.
“They didn’t want to have it scrutinized. It’s clear they didn’t want any piece of paper showing up on their watch saying they gave deferred action to terrorists.”
Morrison says such discretion in enforcing law is crucial. And the benefits that accompany permission to work while deportation is held at bay, he said, is practical.
“You have no rights,” Morrison said. “You have the right to work, because it doesn’t make sense to have people starve, and we don’t give them welfare.”
“There’s nothing pernicious about this,” he said. “These people were not a threat to anyone in the United States.”
Jerard González, the former immigration prosecutor, disagrees that former IRA members should get a reprieve from deportation.
González handled cases involving former IRA members when he was a federal prosecutor working on immigration cases.
He recalls pursuing the deportation of a man who served time in a Northern Ireland prison in the 1980s for acting as an armed lookout for an Irish Republican Army splinter group in the shooting of a police officer.
The man also was convicted on charges of conspiring to shoot another officer.
The man remains in the United States, where he owns homes and a business while he fights deportation.
Irish-American lobby groups rallied around him, launching email and telephone campaigns targeting political leaders, and got the support of several members of Congress.
“If the goal of our enforcement policies are to remove criminals, here’s a convicted terrorist,” González said.
“I thought about the disparity,” González said. “He gets to stay, but the others are gone – deported — because they didn’t have the pull, didn’t have the political connections.”
With the Loophole Front and Center, a Battle Looms
Meissner sees the new deportation policy as a pragmatic first step toward some sort of immigration reform.
“They’re taking something that’s been done piecemeal, and making it more focused, more strategic, by putting their resources where they are best used,” she said.”High priority cases will move the courts more quickly, there won’t be as large a backlog.”
Meissner says that the heated differences over how to handle enforcement and deportations underscore “why Congress needs to act on immigration.”
Stacked next to the estimated 11 million undocumented people in the United States, Meissner said, the 300,000 people whose deportations will be reviewed “is a small proportion,” and hardly address the larger issue of illegal immigration.
“No one can rectify [the system’s flaws] but Congress,” she said.
That said, she noted that immigration is a much complex matter than when she was immigration commissioner.
“We’re dealing with a much more sizable number of unauthorized immigrants,” she said, “who have been here a long time, they are in mixed-status households, they’re invested in various ways in their communities. They have roots now.”
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