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.
