Billionaire Democratic mega-donor George Soros penned a July 31 opinion piece for the Wall Street Journal captioned “Why I Support Reform Prosecutors”. A passage therein sounds a lot like a “guidance” memo issued by DHS Secretary Alejandro Mayorkas gutting immigration enforcement. The “Mayorkas memo” is currently vacated pending Supreme Court review, but could be revitalized by January. Soros’ op-ed provides some clues as to what is really going on with immigration non-enforcement.
George Soros and His Vision of the U.S. Justice System. For those who are not familiar with him, Soros was born in Hungary in 1930, travelling to London at the age of 17 where he worked his way through the prestigious London School of Economics. He made his money in his subsequent hedge fund work, $18 billion of which he shifted to the “Open Society Foundations” in 2018.
Philanthropy is not the only “investment” Soros has been making. In October 2016, Politico detailed how the billionaire had “channeled more than $3 million into seven local district-attorney campaigns in six states” in the prior year, “all of whom ran on platforms sharing major goals of Soros’, like reducing racial disparities in sentencing and directing some drug offenders to diversion programs instead of to trial”.
Why spend so much on a bunch of local races? As Politico explained: “Prosecutorial discretion gives district attorneys a huge say in the charges and sentences that defendants face.” Changing criminal codes and sentencing laws you don’t like is hard; it’s much easier to get a compliant DA elected who promises not to enforce those laws and to seek lesser sentences.
Or, as the Heritage Foundation puts it:
Essentially, a group of left-leaning billionaires discovered that they could get the most bang for their buck by funding rogue district attorneys who would simply refuse to enforce certain policies or laws they disagreed with rather than undertaking the much more difficult and expensive task of electing sympathetic state legislators to actually change states’ laws.
Your personal opinion of the U.S. criminal justice system likely guides what you think of such efforts, as a New York Post article revealed in December, when it quoted a prominent Republican lawmaker:
“Everywhere Soros-backed prosecutors go, crime follows,” said Arkansas Republican Senator Tom Cotton in a statement to The Post. “These legal arsonists have abandoned their duty to public safety by pursuing leniency even for the most heinous crime, and they often flat-out refuse to charge criminals for shoplifting, vagrancy and entire categories of misdemeanors.”
The Wall Street Journal Op-Ed. It was in response to such complaints that Soros offered his own take on his efforts in the Wall Street Journal. While the billionaire argues that he’s “concerned about crime” and asserts that “[o]ne of government’s most important roles is to ensure public safety”, he next contends that “our system is rife with injustices that make us all less safe”.
Which brings me to the critical passage, in which Soros states:
In recent years, reform-minded prosecutors and other law-enforcement officials around the country have been coalescing around an agenda that promises to be more effective and just. This agenda includes prioritizing the resources of the criminal-justice system to protect people against violent crime.
“Effectiveness” and “justice” are ends it’s safe to assume all Americans expect from their criminal-justice system. The problem is that they are subjective concepts — what you and I consider to be “effective” could well be two different results, and as for justice, the flexibility of that term is the basis for Portia’s famous “Quality of mercy” speech in Shakespeare’s “The Merchant of Venice”.
The only objective way to ensure efficiency and justice is to enforce the law as written. Legislators serve at the pleasure of their constituents, and if the laws they write result in inefficiency and injustice, they will likely repulse the voters who will turn them out and seek a rewrite.
That was the point President Ulysses Grant was making when he stated in his first inaugural address: "I shall on all subjects have a policy to recommend, but none to enforce against the will of the people. Laws are to govern all alike — those opposed as well as those who favor them. I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."
Keep in mind that Grant had just fought (and won) a war waged in part against local nullification of federal statutes, and thus was not merely spouting platitudes — he was charting a way forward for a nation that had just spent four years trying to rip itself apart over such questions.
More directly, I have testified before Congress many times and am always shocked when I’m excoriated by members who complain when I call for what Grant promised: enforcement of the laws. Why shocked? Because they have the power to change those laws. I don’t, meaning that if they don’t like the outcomes, they should change the laws.
Again, however, changing the actual mandates and requirements in the Immigration and Nationality Act (INA) is hard — as I know because as a staffer I tried (sometimes successfully, sometimes not) to assist members in amending it. Which brings me to the Mayorkas memo.
The Mayorkas Memo. In three separate memos — the first issued just after President Biden was sworn in — the administration has attempted to constrain the ability of immigration officers to investigate, question, arrest, detain, prosecute, and remove aliens in the United States (collectively known as “enforcement action”).
The Mayorkas memo is the latest and replaces the prior two. The secretary issued that memo, formally captioned “Guidelines for the Enforcement of Civil Immigration Law”, on September 30.
Echoing Soros and building upon and refining the two preceding guidance memos, it “prioritizes” three classes of aliens for enforcement action: spies and terrorists (threats to national security); aliens who entered illegally on or after November 1, 2020 (threats to border security); and aliens convicted of “serious criminal conduct” (threats to public safety).
While not as restrictive in its scope as the prior two Biden administration memos, Mayorkas’ requires immigration authorities (primarily but not exclusively ICE officers and attorneys) to consider so-called “aggravating” and “mitigating” factors that “militate” in favor of or against (respectively) the taking of enforcement action against facially removable aliens. None of those factors are included in the grounds of removability in the INA.
The Mayorkas memo states that its “foundation principle” is “prosecutorial discretion”, typically viewed as the ability of law-enforcement officers and prosecutors to bring specific charges in a specific case, or not.
The goal of that memo, however, is not the exercise of discretion in individual exceptional cases, but rather a programmatic exercise of that power, best exemplified by the following line in that memo: “The fact an individual is a removable [alien] should not alone be the basis of an enforcement action against them.”
Of course, Mayorkas can’t simply state that he disapproves of the laws Congress has passed and refuse to enforce them. Instead, as Soros advocates, the secretary clothes his attempted nullification in terms of “priorities”, asserting:
It is estimated that there are more than 11 million undocumented or otherwise removable [aliens] in the United States. We do not have the resources to apprehend and seek the removal of every one of these [aliens]. Therefore, we need to exercise our discretion and determine whom to prioritize for immigration enforcement action.
As I explained months before Mayorkas issued his memo, “’Limited resources’ is an oft-heard excuse for not enforcing the immigration laws.” It’s also a strawman.
Want proof? When this claim was first made under the Obama administration in March 2011, ICE asserted that its 20,142 employees (with a budget of $5.342 billion) could only remove 400,000 aliens annually. That fiscal year, in fact, the agency came close to that limit, removing 396,906 aliens.
The Fifth Circuit came to roughly the same conclusion about this con in its recent opinion in Texas v. U.S., denying the administration’s request to stay a district court order vacating the Mayorkas memo:
The district court found that DHS’s reliance on the excuse of “insufficient resources and limited detention capacity” was not in good faith. While complaining that Congress has not provided sufficient resources to detain aliens as required by law, DHS simultaneously submitted “two budget requests [for 2023] in which it ask[ed] Congress to cut [its] resources and capacity by 26%.” Additionally, since 2021, DHS has “persistently underutilized existing detention facilities.” We further note the oddity that DHS emphasizes “limited resources” as its main defense of a rule that increases the complexity of its purportedly already-overwhelmed agents’ jobs. For example, the Final Memo instructs that, before pursuing enforcement, personnel should, “to the fullest extent possible, obtain and review the entire criminal and administrative record and other investigative information to learn of the totality of the facts and circumstances of the conduct at issue.” But prior to the Final Memo, personnel could simply rely on an order of removal or a qualifying criminal conviction. As the district court observed, DHS is “in effect ... making it harder to comply with the statutory mandate it complains it doesn’t have the resources to comply with.”
“Quality Over Quantity”. Mayorkas would likely retort that DHS is simply choosing “quality over quantity” when it comes to removing aliens (the key part of Soros’ arguments in the criminal context), but even that assertion doesn’t hold up in the immigration-enforcement context.
As my colleague Jessica Vaughan has explained, the total number of convicted criminals that ICE has removed has plummeted from more than 150,000 in FY 2019 to less than 40,000 in FY 2021.
Even within that subset, the number of aliens convicted of aggravated felonies — the worst of the worst in Congress’ estimation in the INA — has dropped from 12,200 in FY 2019 to 5,221 in FY 2021. Aliens convicted of homicide, sex assault, weapons offenses, kidnapping and removed — all down significantly.
What is Mayorkas’ real agenda, then? To figure that out, you need to turn — as the Fifth Circuit did in Texas, to the “Considerations” memo that accompanied the Mayorkas memo.
“Advancing Equity for All”. That memo made the limits in Mayorkas’ binding on ICE officers and fleshed out the department’s rationale for the limitations in the secretary’s memo. On p. 7 of that document, DHS explains:
On his first day in office, President Biden affirmed that "advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government." In the immigration enforcement context, scholars and professors have observed that prosecutorial discretion guidelines are essential to advancing this Administration's stated commitment to "advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality."
Plainly, advancing equality is a laudable goal, but I am not sure how it applies in this context. In any event, the Fifth Circuit concluded that the administration’s “replacement” of the statutory mandates in the INA “with concerns of equity and race is extralegal, considering that such policy concerns are plainly outside the bounds of the power conferred by the INA”.
I also want to root out injustices in our immigration system. Doing so, however, is Congress’s job, not the president’s. If that is Biden’s goal as well, however, he should take the same vow the 18th president took: To apply those laws to govern all removable aliens alike. If the INA is “bad or obnoxious”, the people, not billionaires, are the ones to change it.