In public, the Obama administration boasts of being tough on illegal immigration. “We’re trying to put our money where our mouth is,” Immigration and Customs Enforcement (ICE) director John Morton told the Washington Post in a story claiming that deportations are rising. “You’ve got to have aggressive enforcement against criminal offenders. You have to have a secure border. You have to have some integrity in the system.”
Yet in private, the discussion among Obama appointees often turns to ways they can use their administrative powers to give illegal immigrants work permits and an interim legal status, even if Congress does not go through the formality of passing “comprehensive immigration reform.” In fact, getting around the democratically elected legislative branch’s intransigence seems to be the point.
This first became apparent when Sen. Charles Grassley (R-IA) released a draft memo prepared for the director of the U.S. Citizenship and Immigration Services (USCIS) outlining ways the existing law could be interpreted to provide “alternatives to comprehensive immigration reform.” The immigration bureaucrats pondered “administrative relief options” to “reduce the threat of removal for certain individuals present in the United States without authorization” — that is, to implement an amnesty for illegal immigrants without Congress actually enacting one.
Now TAS has obtained an early draft of a memo prepared in the Department of Homeland Security (DHS), a version of which sources say made it all the way up to Secretary Janet Napolitano, contemplating a “bold” program “using administrative measures to sidestep the current state of Congressional gridlock and inertia.” Translation: an amnesty for people — described as “the current unauthorized population or selected subsets” — Congress has repeatedly decided not to grant amnesty.
Maybe that amnesty would affect “the entire potential legalization population” with the exception of “individuals who pose a security risk.” Maybe it would be “narrowly tailored” and extend only to “individuals eligible for relief under the DREAM Act, AgJOBS, or other specifically defined subcategories.” For English, press 1: that means illegal immigrants who would have benefited from mini-amnesty legislation that Congress has also pointedly declined to pass.
The two drafts are very similar in substance. They both propose expanding the use of deferred action, parole in place, and other acts of administrative discretion for hardship cases to a much broader number of illegal immigrants. That would allow these immigrants to remain in the country indefinitely even if no legislation changing their status ever reaches the president’s desk. The DHS memo gets a little deeper into the weeds of U.S. immigration law and features a more interesting discussion of the political ramifications for such actions.
Its authors fret that Congress might come in and undo their handiwork. “Registration would have to be completed quickly, in order to reduce incentives for individuals to enter the U.S. unlawfully in the hope of applying for the program,” the document reads. “To create an operationally feasible application program, DHS would require up-front funding and sufficient time to a ramp-up and the need for upfront funding may provide Congress an opportunity to block this initiative if it objects.”
Even worse, from the bureaucrats’ perspective, Congress could react to the idea by reining them in even further: legislation could advance on Capitol Hill to “bar or greatly trim back” DHS’s discretion in deferred action and humanitarian parole even more than it is already limited by current law.
Amnesty supporters on the Hill may bail: “Even many who have supported a legislated legalization program may question the legitimacy of trying to accomplish the same end via administrative action, particularly after five years in which the two parties have treated this as a matter to be decided by Congress.”
The voters might be even peskier than Congress: “The Secretary would face criticism that she is abdicating her charge to enforce the immigration laws.” People who have dedicated their careers to enforcing those laws might also cause annoying problems: “Internal complaints of this type from career DHS officers are likely and may also be used in the press to bolster the criticism.” Finally: “Opponents of the registration program will characterize it as ‘amnesty'” and complain that it is “being proposed to pander to Latino voters.”
What good could come of any of this? “A registration program can be messaged as a security measure to bring illegal immigrants out of the shadows.” And Democrats should be awfully pleased: Both the president and congressional leaders will “be viewed as breaking through the Washington gridlock in an effort to solve tough problems. Giving nervous Members of Congress something tough to vote for while providing Latino voters with something they can support will be a win-win for us all.”
The key, of course, is to “boldly drive the narrative”: “President Obama and the Administration would assert that they are stepping into the breach created by congressional gridlock and moving aggressively to solve a vexing problem that three consecutive Congresses have tried but failed to fix.”
When the USCIS memo came out, the Obama administration wisely dismissed the babble as mere internal deliberations that don’t reflect actual policy: “To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.” The reaction was much the same here, with a robust defense of the administration’s enforcement record thrown in for good measure.
“DHS will not grant deferred action or humanitarian parole to the nation’s illegal immigrant population,” DHS spokesman Matt Chandler told TAS. “In fact, DHS has engaged in overall record breaking immigration enforcement, including the removal of 130,000 convicted criminals in 2009 and over 170,000 convicted criminals this year — a record number. To be clear, we are not engaged in a ‘backdoor’ amnesty and are on pace to place more people in immigration proceedings this year than ever before.”
Indeed, the document TAS has seen called for all sorts of things that have not happened. Cooler heads within the administration likely decided a major announcement of “administrative action” to be made “when the midterm election season is in full-swing” was not such a hot idea. Maybe they will ultimately conclude that the right time for such a move is “Never.”
But given the fact that such deliberations have been taking place — and the administration’s own clear preference to avoid removing illegal immigrants who are not convicted criminals — members of Congress would be wise to try to find out.