The Borderline Spectator

Discretion Is Advised

On administrative amnesty, the Obama administration tells La Raza, "Yes, we can!"

By 8.29.11

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Speaking to the National Council of La Raza in July, President Obama told his restive audience that he was bound to enforce the country's immigration laws and couldn't change them without congressional approval. In response, the crowd chanted, "Yes you can, yes you can!"

La Raza apparently changed the president's mind, because according to an August 18 letter from Homeland Security Secretary Janet Napolitano, yes he did. Napolitano informed Senate Majority Leader Harry Reid and 21 other senators that DHS was focused on removing only illegal immigrants who were violent criminals, convicted felons, or repeat violators.

Additionally, the administration will individually review the cases of over 300,000 illegal immigrants already in deportation proceedings to make sure that they are in line with the new enforcement priorities. That means some will not only be let go but also be given work permits.

Many of those getting a pass would have been amnestied by the DREAM Act, which Congress has repeatedly defeated under both Democratic and Republican majorities. "The President has said on numerous occasions that it makes no sense to expend our enforcement resources on low-priority cases," Napolitano wrote, such as the DREAM Act's more sympathetic poster children.

Yes, he can.

In June, the head of Obama's Immigration and Customs Enforcement (ICE) agency sent out a memo highlighting all the factors that should be taken into consideration when exercising prosecutorial discretion in immigration cases. Critics blasted the document as an announcement that the federal government was going to effectively stop arresting entire categories of illegal aliens.

This summer's moves follow repeated leaks of documents showing that the bureaucracies charged with immigration enforcement had discussed administrative alternatives to "comprehensive immigration reform" -- that is, ways to advance amnesty through the executive branch. Describing these documents as mere brainstorming sessions, DHS representatives have only denied that they would use their discretion to amnesty the entire illegal immigrant population.

In her letter to Reid and company, Napolitano continues to advocate the passage of the DREAM Act, noting that the new policy "will not provide categorical relief for any group." DHS is well within in its rights to set enforcement priorities, and the removal of criminal aliens is a logical place to start. Prosectuors also need a certain amount of discretion. But these tools should not be used to bypass Congress and set policy.

Napolitano wrote that over 50 percent of the illegal aliens deported in fiscal 2010 were convicted criminals. More than two-thirds of the remainder were either apprehended at the border or were "repeat violators of our immigration laws." The secretary said they aim to continue this trend.

This explains a seemingly contradictory policy where the Obama administration has been simutaneously pushing the Secure Communities program against liberal opposition while also suing states that enact laws like Arizona's SB 1070. The first focuses only on criminal aliens in local custody. The latter targets illegal immigrants more generally, and the White House is signaling that simply being in the country illegally is no longer sufficient grounds for removal -- or at least not a priority.

"Both the nature and timing of the decision suggest that presidential politics is at play here," Wendy Schiller, a Brown University political scientist, told CNN. "Obama has lost ground with his liberal base… and he absolutely needs strong support in states with large Hispanic populations to keep the White House for four more years."

That's why the administration quietly let the new policy slip while Congress was out of town and the president was on his way to Martha's Vineyard.

Play immigration politics as a Democratic get-out-the-vote effort in 2012? Yes, he can.

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About the Author

W. James Antle III, author of the new book Devouring Freedom: Can Big Government Ever Be Stopped?, is editor of the Daily Caller News Foundation and a senior editor of The American Spectator. You can follow him on Twitter @jimantle.