A Kinder, Gentler Amnesty
By the time Homeland Security Secretary Janet Napolitano confirmed the shift in policy, it was hardly a surprise. In an August 18 letter to Senate Majority Leader Harry Reid and 21 other Democratic senators, Napolitano acknowledged that removing people from the country simply for being illegal immigrants was no longer an “enforcement priority” of the Obama administration.
Henceforth, the Department of Homeland Security would focus on deporting illegal aliens who are violent criminals, convicted felons, or repeat immigration-law violators. Those priorities would be fine and dandy if the secretary weren’t willing to leave the remainder—that is, the majority—of the illegal population alone.
Napolitano also indicated that federal immigration authorities aren’t going to do anything about illegal immigrants who would have benefited from the DREAM Act (Development, Relief and Education for Alien Minors), a targeted amnesty that according to one estimate would have legalized 1.3 million people (not counting the parents of those the bill would have amnestied). That would be the same DREAM Act Congress specifically declined to pass, 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. She also informed the sympathetic group of senators that the administration was going to review 300,000 illegal immigrants already in deportation proceedings to make sure that their cases are in line with these new, more lenient guidelines.
What Napolitano is discussing is essentially amnesty by executive fiat. While the brazenness of this end run around Congress may be shocking, the handwriting has been on the wall for some time. In leaked memos and unguarded public pronouncements, the political appointees tasked with enforcing our immigration laws have demonstrated that they are more interested in finding exceptions to the rules.
In June, Immigration and Customs Enforcement (ICE) chief John Morton sent out a memo highlighting all of the factors that should be taken into consideration when exercising “prosecutorial discretion” in immigration cases. The document was a not-too-thinly-veiled invitation to stop enforcing the law against whole categories of illegal aliens and to use necessary administrative leeway to effect policy changes that lack support in Congress. (It is not surprising that unions representing border-patrol and customs agents have repeatedly passed “no confidence votes” against Morton.)
Last year, Sen. Charles Grassley (R-IA) obtained a memo being circulated within the U.S. Citizenship and Immigration Services (USCIS), kicking around the idea of “administrative alternatives” to “comprehensive immigration reform.” Like Morton’s manifesto, USCIS sought to use its own discretion in individual hardship cases effectively to amnesty large numbers of illegal immigrants. Humanitarian parole, deferred action in deportation proceedings, and parole in place were all floated as ways to achieve amnesty without Congress.
“In the absence of Comprehensive Immigration Reform, CIS can extend benefits and/or protections to many individuals and groups by issuing new guidance and regulations,” claimed the 11-page document, which was prepared by four senior officials from different parts of USCIS for the agency’s director. Two of the memo’s authors were Obama appointees. One of the suggestions was simply to stop serving illegal immigrants with notices to appear at deportation hearings unless they had “significant negative immigration or criminal history.”
The Obama administration dismissed this as a mere brainstorming session with no policy impact. Grassley, however, complained that “This memo gives credence to our concerns that the administration will go to great lengths to circumvent Congress and unilaterally execute a back door amnesty plan.”
About a month later, there emerged a draft memo from within the catacombs of DHS proposing a “bold” program “using administrative measures to sidestep the current state of Congressional gridlock and inertia.” The Homeland Security scribblers—whose handiwork, sources told me, went all the way up to Napolitano’s desk—discussed whether their generosity should be bestowed upon “the current unauthorized population or selected subsets.”
After all, they speculated, they could come up with loopholes to benefit “the entire potential legalization population” with exceptions for “individuals who pose a security risk.” Alternatively, DHS could come up with something “narrowly tailored” and only extended to “individuals eligible for relief under the DREAM Act, AgJOBS, or other specifically defined subcategories.” AgJOBS (Agricultural Job Opportunities, Benefits and Security), like DREAM, is a targeted amnesty that Congress declined to pass on more than one occasion.
Unlike their pals at USCIS and ICE, the DHS staffers were at least worried about the potential political fallout: “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 Secretary would face criticism that she is abdicating her charge to enforce the immigration laws,” the memo’s authors fretted. “Internal complaints of this type from career DHS officers are likely and may also be used in the press to bolster the criticism.” Annoying voters, irritating elected officials, and obnoxious people who have put their lives on the line enforcing immigration laws! “Opponents of the registration program will characterize it as ‘amnesty,’” they continued, and protest that it is “being proposed to pander to Latino voters.”
All of those objections would have the benefit of actually being true, unlike the self-aggrandizing spin the memorandum offers as arguments for an unprecedented immigration power grab. The document contains speculation that the President and Democratic congressmen 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.”
Except, you know, Americans. When the second of the amnesty memos came out, the most the administration would publicly promise was this: “To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.” Napolitano used similar language in arguing that Congress should still pass the DREAM Act even after administrative amnesty, as the new policy “will not provide categorical relief for any group.”
What a categorical relief!
The move comes as Hispanic leaders are becoming increasingly angry at President Obama for failing to win approval for amnesty legislation and for bragging to swing voters about “record deportations.” (There is some evidence, such as a recent Pew Hispanic Center survey, that suggests rank-and-file Hispanic voters are more concerned about jobs and the dismal economy. But they don’t give liberal quotations in perfect English to the New York Times, so their views don’t matter.)
Speaking to the National Council of La Raza in July, Obama told the frustrated crowd that he was constitutionally bound to enforce the nation’s immigration laws and that he couldn’t change them without congressional approval. They shouted in response, “Yes, you can! Yes, you can!” Obama was apparently convinced by a clever twist on his own campaign slogan.
Interestingly, Obama is at loggerheads with Hispanic activists over a policy designed to make amnesty more palatable. The President has continued the Bush administration’s Secure Communities program, which identifies illegal immigrants already in state and local custody. This has helped boost deportation statistics by putting criminal aliens on a fast track out of the country while leaving most run-of-the-mill illegals alone.
Many liberal jurisdictions are starting to opt out of Secure Communities, because even this limited immigration enforcement is too much for them. But just like the Bush administration that cooked up this program, the Obama administration is using selective enforcement to sell amnesty down the road. That’s why Obama can support Secure Communities, on the one hand, and then file lawsuits against Arizona, which wants to use local law enforcement against illegal immigration in general. Unlike La Raza, the pro-amnesty political professionals are taking the long view.
With the 2012 presidential election fast approaching, Team Obama is shrinking from the long view a little bit. Florida, Colorado, Nevada, New Mexico, and even North Carolina all have significant Hispanic populations, and these are the states that will determine who wins the White House. Redolent of the Clinton administration’s naturalization of a large number of immigrants right before the 1996 election, Obama needs to reshape immigration policy in a way that gets out the Latino vote even if Congress won’t go along.
Thus ICE, USCIS, and DHS talk about a leniency you will never read about in memos distributed within the IRS. Who knows how many people will benefit from administrative amnesty now that illegal immigration by itself is frequently no longer treated as if it is illegal? The administration is pursuing these ends through the highly technical means of memorandum mumbo-jumbo, so as to avoid the kind of backlash that annually sank the McCain-Kennedy amnesties under Bush. They hope voters will turn a blind eye to Janet Napolitano as she turns a blind eye to vast numbers of illegal immigrants who simply aren’t an enforcement priority anymore.
W. James Antle, III is associate editor of The American Spectator.
This article first appeared in the November 2011 issue of Chronicles: A Magazine of American Culture.