Obama's Immigration Fiat

By Mark Krikorian on September 8, 2011

The National Interest, September 8, 2011

Most U.S. states require all those riding in an automobile to wear seat belts. But failure to wear a seat belt is usually a "secondary offense," meaning that you cannot be pulled over and ticketed solely for that infraction but instead must be pulled over for speeding or some other offense first.

The Obama administration is working diligently to make all violations of the immigration law into secondary offenses. The goal is to ensure that no illegal immigrant, ever, is removed from the United States solely for being an illegal immigrant. Rather, only those illegal immigrants guilty of some additional crime—and a "serious" crime, at that—should be deported.

This is the equivalent of the Internal Revenue Service announcing that ordinary citizens who fail to pay their taxes would suffer no consequences because the IRS would pursue only those who commit additional crimes, such as drug dealing or terrorism.

Although the administration hasn't formally announced this secondary-offense approach as the overarching framework for immigration policy, its specific actions and announcements over the past two and a half years leave no room for doubt.

The first indication of this came at the beginning of President Obama's term, when further worksite raids by immigration agents were prohibited. In order to maintain the pretense of worksite enforcement, the administration increased audits of employers' personnel records, requiring those workers who were illegal to be fired. By design, however, this approach scrupulously avoids the arrest of any illegal workers, enabling them to just get another job down the street.

The Justice Department's lawsuits against Arizona and Alabama are part of the same pattern. Both states passed tough immigration laws that would have resulted in local police identifying ordinary illegal aliens and reporting them to federal authorities. But this ran contrary to the policy that all illegal immigrants must be permitted to remain here unmolested until they commit some additional, non-immigration-related offense—and so, the federal government joined the ACLU and other administration allies in suing to stop the legislation. The lower courts have ruled against Arizona, which has filed an appeal to the Supreme Court, while the Alabama law is temporarily on hold as the judge in the case examines the arguments in more detail. If any part of the Alabama law is upheld, the Supreme Court would be more likely to hear the Arizona case so as to ensure a single standard across the federal court system. But even if the Supreme Court hears the case and finds for Arizona, the immigration authorities can simply choose not to deport those reported to them by local police.

Then in June of this year, Immigration and Customs Enforcement (ICE) issued a memo encouraging field agents to exercise "prosecutorial discretion" in considering which aliens to arrest—a thinly veiled order not to arrest illegal immigrants meeting any of various criteria. Most of the objection to this action stemmed from the fact that the first several criteria listed covered those who would have been eligible for the DREAM Act amnesty, which would have legalized certain illegal immigrants who came here before age sixteen; Congress rejected the DREAM Act and here, critics said, the administration was simply enacting it by fiat.

The critics were right; the administration had committed what can only be described as a lawless act. But obscured by the debate over the de facto implementation of the DREAM Act were the other criteria in the memo which effectively ensured that all illegal immigrants would be exempt from deportation until they had killed someone or committed some other violent crime. Those who should be exempted include illegal aliens who have "ties and contributions to the community, including family relationships," those with "a U.S. citizen or permanent resident spouse, child, or parent," illegal aliens who are minors, or elderly, or ill, or married to someone who's ill, or the primary caretaker for a minor, or pregnant, or nursing, or who has few ties to his home country, or whose home country is unstable, etc., etc.

The most recent manifestation of the policy was the August announcement that those illegal aliens who had been arrested before the above-mentioned prosecutorial discretion policy went into effect—i.e., were already in the deportation pipeline—should all have their cases reexamined, and those who aren't rapists or drug dealers should be released. This applies to 300,000 people, and while not all will benefit, those who do will actually be given the legal right to work and a Social Security number—an administrative amnesty, albeit without the immediate prospect of citizenship.

The result of all this is that the steady increase in deportations we'd seen since the Clinton administration has stalled and started to reverse; in FY 2007, there were about 319,000 "removals," 360,000 in FY08, 395,000 in FY09 (the first third of which was still in the Bush term), 387,000 last fiscal year and we're likely to see a further drop this year.

Rather than openly defending their secondary-offense approach to immigration, administration spokesmen have argued that they have limited resources and must prioritize among so many illegal aliens, and the most dangerous should be first in line for removal. The problem with this claim is that this administration is the first in a long time not to request additional deportation funding—in other words, it's pleading poverty, but a poverty of its own making.

Despite that, resources will never be unlimited and some prioritization will always be necessary. But there are still two problems with using prioritization as political cover for its secondary-offense approach. First, other law enforcement agencies prioritize all the time without pulling the plug on random enforcement; tax audits, for instance, do not focus exclusively on money-launderers, drug dealers and corporate crooks but also on a random selection of ordinary taxpayers to ensure that people know there's a chance that they'll be caught if they cheat. The same is true for enforcement of traffic laws, occupational safety and health laws, hunting regulations and every other kind of enforcement—except immigration.

Secondly, the idea that even ordinary illegal aliens are "otherwise law-abiding" is simply false. To begin with, two-thirds of the illegal population snuck across the border, which is a crime; the other third overstayed their visas, which is merely a civil infraction, like a traffic ticket. But both visa overstayers and border-jumpers commit identity fraud and identity theft, perjury (if they submitted false information for employment), tax fraud, false claims of U.S. citizenship, failure to register for the draft, various kinds of conspiracy and so on. In the end, almost every illegal alien has committed multiple felonies for which less-favored categories of people, such as U.S. citizens or legal immigrants, would surely be prosecuted.

The administration's individual actions and announcements on immigration have occasioned plenty of angry comment. But whether this illegal alien gets amnesty or that illegal alien is released from detention is secondary to the larger problem—the downgrade of immigration law itself. And since immigration control is one of the most important security tools, not only is the rule of law compromised, but our nation's safety as well.