President Obama, Immigration Reform, and Republican Bullsh*t

As readers of this blog most likely know, I was (and remain) a strong supporter of the DREAM Act. I’ve gone so far as to express my belief that Opposition to the DREAM Act Is a Racist “F-You” to the American Dream. And I was very critical of soon-to-be-former Sen. Lugar for dropping his support for the DREAM Act (of which he had been a sponsor for years) because, he claimed, Democrats had “politicized” the issue of immigration (I’m Losing Respect for Sen. Lugar (update)).

Now that President Obama Secretary of Homeland Security has issued her memo suspending deportations of certain undocumented immigrants, many Republicans have become almost apoplectic in their anger and dismay. So it’s no great surprise the extent to which they have decided to lie and demagogue and simply bullshit their way around the issue. The most common things you’re likely to hear Republicans say (over and over and over) are that President Obama violated the Constitution (or, perhaps, for those who prefer to be a bit less bombastic, the claim may be that President Obama overstepped his authority), that his action creates an amnesty or a “pathway to citizenship”, that the “amnesty” will encourage more illegal immigration, and that his action makes comprehensive immigration reform more difficult to accomplish. I want to (briefly, I hope) tackle each of those points. But first, it’s worth doing something that most of the Republicans and Faux News “journalists” can’t be bothered to do: Look at what President Obama and the Department of Homeland Security actually did.

So, for starters, you might want to read the memo that Secretary of Homeland Security Janet Napolitano actually wrote to the Acting Commissioner of U.S. Customs and Border Protection, the Director of U.S. Citizenship and Immigration Services, and the Director of U.S. Immigration and Customs Enforcement. Read her memo and let me know which parts you disagree with:

By this memorandum, I am setting forth how, in the exercise of our prosecutorial discretion, the Department of Homeland Security (DHS) should enforce the Nation’s immigration laws against certain young people who were brought to this country as children and know only this country as home. As a general matter, these individuals lacked the intent to violate the law and our ongoing review of pending removal cases is already offering administrative closure to many of them. However, additional measures are necessary to ensure that our enforcement resources are not expended on these low priority cases but are instead appropriately focused on people who meet our enforcement priorities.

The following criteria should be satisfied before an individual is considered for an exercise of prosecutorial discretion pursuant to this memorandum:

• came to the United States under the age of sixteen;

• has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;

• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;

• has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and

• is not above the age of thirty.

Our Nation’s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.

As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal. No individual should receive deferred action under this memorandum unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases.

1. With respect to individuals who are encountered by U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS):

• With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.

• USCIS is instructed to implement this memorandum consistent with its existing guidance regarding the issuance of notices to appear.

2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:

•I CE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal, in order to prevent low priority individuals from being removed from the United States.

• ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.

• ICE is directed to begin implementing this process within 60 days of the date of this memorandum.

• ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.

3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:

• USCIS should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis, by deferring action against individuals who meet the above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.

• The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age.

• USCIS is directed to begin implementing this process within 60 days of the date of this memorandum.

For individuals who are granted deferred action by either ICE or USCIS, USCIS shall accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.

Whew. Sorry. I know that’s a mouthful. Just out of curiosity, now that you know what the Obama administration really did, was the news coverage, punditry, or political posturing that you heard even close to accurate? If not, you might want to think about who you’re listening to, what agenda they might have, and whether you should trust other things from that “news” source. One point to chew on: This wasn’t an executive order at all and if you hear that it was … well, someone either hasn’t really looked at the facts, is playing fast and loose with those facts, or isn’t quite telling you the truth.

Now, on to the substance.

The first point that I want to make is on the subject of prosecutorial discretion. That’s not a phrase that has been used in the public sphere very often prior to this matter. In essence, the idea is simply that the government, acting through its prosecutors, has the discretion of which crimes to prosecute and which alleged criminals to bring to trial. Prosecutors exercise this sort of discretion all the time. Obviously, they may choose not to prosecute a case when the evidence is weak. The prosecutor may be convinced that the alleged criminal is, indeed, guilty, but without compelling evidence the prosecution would be a waste of limited resources. Similarly, and probably more importantly, prosecutors don’t have to prosecute every single crime. Does every teen caught with a beer go to jail or even appear before a court? Of course not. What about every person who gets pulled over for speeding or running a red light? Does every single shoplifter get prosecuted? And it isn’t just minor crimes that are sometimes ignored. How many Wall Street bankers have been prosecuted for the actions that led up to the financial meltdown? How many members of the Bush administration have been prosecuted for advocating, ordering, or permitting torture? With regard to immigration, we know that prosecutors have routinely elected not to bring deportation proceedings against certain illegal immigrants for a whole host of reasons, from economic hardship, to family obligations, to, well, the list is probably endless. And, until now, that has never really been a problem.

We have a limited number of prosecutors, a limited number of courts, and finite resources available. Thus, not every crime is, can be, or should be, treated identically. Prosecutors have to decide which cases are the most important ones to prosecute. They have to decide who to deport. And that is prosecutorial discretion.

So, in essence, Secretary Napolitano has simply instructed the prosecutors working under her (and President Obama has essentially directed the Justice Department’s prosecutors, who it is worth mentioning are political appointees) to focus their attention on other, more important crimes and “criminals” and not to waste those precious prosecutorial resources on this small subset of people who have otherwise not committed any crimes and who are valuable members of society.

One quick tangent: Let’s say for the sake of argument that a 14-year-old commits a non-violent felony. Possession of a marijuana joint, for example. When that child turns 18, absent aggravating circumstances at the time of the conviction, doesn’t that crime get expunged from the child’s record? Of course. But that isn’t true in the case of a child brought to the US illegally by his or her parents. When that child turns 18 he or she is still deemed to be a criminal, I guess because the continued act of being in the US is a crime, even though the “bad act” was not really committed by the child, but by his or her parents. OK. Tangent over.

Now, given what I’ve described about prosecutorial discretion and now that you’ve read what the Department of Homeland Security has actually done, could you please tell me how President Obama has either violated the Constitution or overstepped his authority? Recall, of course, that it is the President who is in charge of the Executive branch of which both the Department of Homeland Security and the Justice Department are a part. If Congress wants to pass a law that requires each and every undocumented immigrant to be deported, I suppose they could (of course, they’d also probably have to increase funding for prosecutor’s offices, public defenders, and courts). Or, they could pass immigration reform.

As for those who say that President Obama has issued some kind of amnesty (like, for example, Sen. Jim DeMint [R-South Carolina] or Rep. Lamar Smith [R-Texas]; see Politifact’s analysis of whether President Obama’s action grants amnesty), they would do well to re-read (presuming that they’ve read the memo in the first place) the last paragraph (emphasis added):

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.

One quick issue to note about this paragraph. The statement that the memo “confers no substantive right” is likely only meaningful to lawyers, but it is extremely important. In essence, that paragraph means that someone cannot sue the Department of Homeland Security or US Government to force compliance with this memo or to prevent a prosecutor from using prosecutorial discretion to go ahead with a deportation proceeding. In other words, the memo doesn’t grant any rights to undocumented immigrants; rather, is just tells prosecutors how to handle certain situations.

Anyway, given that the memo specifically notes that it is not conferring immigration status or a pathway to citizenship and noting further that “[o]nly the Congress” can do so, if you hear a “journalist,” pundit or politician tell you that President Obama either conferred immigration status or created a pathway to citizenship, please recognize that they are lying to you.

Another of the charges leveled against President Obama is that the decision to not deport certain people will encourage additional illegal immigration. First, it’s worth remembering that the Patron Saint of the Republican Party, Saint Ronald of Reagan, granted amnesty to over 3,000,000 illegal immigrants. Hmm. Anyway, with regard to the current claim that the policy will encourage illegal immigration, it is worth recalling this part of the memo (emphasis added):

has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;

I’m not exactly sure why a policy that requires presence in the US today will encourage future illegal immigration. And just to show you how crazy some Republicans are when it comes to their need to demonize illegal immigrants and President Obama, it’s worth noting the claim made by Rep. Blake Farenthold (R-Texas) in an interview with CNN’s Soledad O’Brien:

“You’re talking about people that came over at 16 years of age. At that point, you had a say in it. And that looks kind of more like amnesty,” the congressman said.

O’Brien was skeptical of this remark, challenging the congressman: “You think a 16-year-old whose parents are coming across the border has a say in whether or not they’re just going to stay behind in their country?”

“They’re certainly in a position to have a conversation with their parents about it,” Farenthold replied.

Right. So the 16-year-old child should prevent the parents from immigrating illegally. What about a 12-year-old? 4 year-olds? Are they getting “amnesty” Congressman?

Finally, I want to look at what Speaker John Boehner had to say:

I think we all have concerns for those who are caught in this trap, who — who through no fault of their own are here. But the president’s actions are going to make it much more difficult for us to work in a bipartisan way to get to a permanent solution.

Do you have any idea what he’s talking about? I mean let’s think about it for a second. Under Boehner’s leadership, the House of Representatives refused to take up the DREAM Act (it was passed in December 2010, before the new Republican majority came to power). The Senate, meanwhile, passed the DREAM Act … oh, wait. That’s not actually true. A majority of the Senate (55 Senators) voted for the DREAM Act … but in the Senate, a mere majority, even a 5-vote majority, is not enough to override a filibuster, and thus, though supported by a majority of the Senate, the DREAM Act failed. One of the principal objections to the DREAM Act repeatedly voiced by many Republicans was that it granted amnesty and a path to citizenship. Some said that they would support the DREAM Act if it didn’t include amnesty or a path to citizenship (which, is, of course, the whole point of the DREAM Act). But think about it for a minute: Isn’t what the Republicans wanted of the DREAM Act exactly what the Obama administration did? It’s kind of like healthcare reform: Republicans wanted an individual mandate until President Obama agreed with them and gave them what they wanted; then it became unconstitutional.

So anyway, how is it that deciding not to deport children — but not granting them amnesty or path to citizenship — makes it harder to work in a bipartisan way (as if Speaker Boehner has worked in a bipartisan way since taking the speaker’s gavel…)? Remember what Secretary Napolitano’s memo said:

Only the Congress, acting through its legislative authority, can confer these rights.

But somehow, in Speaker Boehner’s world, that makes it more difficult to act in a bipartisan way.

No, the truth is much simpler. Republicans don’t want immigration reform. And, maybe even more importantly, they don’t want President Obama to have any sort of a success that he can point to. The Obama administration did something that will be popular with many Americans (not just Hispanics Latinos). And that sort of success and popularity is anathema to many on the right. So now, to act in a bipartisan manner or to work on immigration reform might, in some circles, look like a victory for President Obama. And the Republicans can’t have that now, can they?

Oh, and isn’t it interesting that Mitt Romney refuses to say whether he would overturn this decision should he become President?

Update (June 22, 2012)

I wanted to add three quick items to this post.

First, yesterday (a week after President Obama’s new policy was announced), Mitt Romney spoke to the National Association of Latino Elected Officials. Here is part of what he said:

Some people have asked if I will let stand the president’s executive action. The answer is that I will put in place my own long-term solution that will replace and supersede the president’s temporary measure.

In other words, Mitt Romney wants to pass comprehensive immigration reform … but he won’t say what that would look like and he won’t say whether he will rescind the instruction not to deport certain undocumented immigrants. And don’t forget that President Obama also wanted to pass immigration reform but was stymied by Republican filibusters and refusal to consider proposals.

Second, since publishing the original post, I’ve read several discussions about the scope of prosecutorial discretion. I’ve seen some interesting arguments as to why President Obama’s action is or is not within the scope of his powers and prosecutorial discretion. I’m still convinced that it was within his powers and is a legitimate example of prosecutorial discretion. But as always, my mind is open and I’m willing to consider arguments to the contrary.

Also, on this point, I also read one analogy of a further example of prosecutorial discretion that I think is quite apropos to the issue of deciding not to deport a particular group of undocumented immigrants. We all know what speed limits are. And we all feel comfortable going at least a little bit faster than the speed limit. Would you have any problem if the Governor, mayor, police chief, or similar official, told police officers not to write tickets for speeding on an Interstate highway unless the person was going at least 10 miles over the posted limit or was driving in a dangerous manner? I suspect that this is already the case. It seems a decent analogy to the deportation issue.

Finally, last night I recalled something I learned when I attended the first Indianapolis Latino-Jewish dialogue last month, namely that use of the term “Latino” was probably a better choice than “Hispanic”. I’ve corrected the the usage in the original post.