National Review Online, August 18, 2020
Late last year, the Republican Senate approved, and President Trump signed into law, the means for a future Democratic president to grant unilateral amnesty to virtually the entire illegal population —and get away with it.
It's called "parole in place." As my colleague Andrew Arthur explained last year, parole in place is a tool concocted by the Obama administration, based on legal contortions by the general counsel of the Immigration and Naturalization Service during the Clinton administration. As such, it had no basis in law.
But clever Democratic congressional staffers inserted it into National Defense Authorization Act, signed into law December 20, 2019. It's a huge bill, including pay raises for soldiers, the creation of the Space Force, and much else.
But if you dig down to Division A, Title XVII, Subtitle B, section 1758 on p. 667 of the bill, you find a provision calling for parole in place for illegal aliens who are close relatives of soldiers, embedding this administrative confection into statute for the first time. The provision only calls for extending this status to a very sympathetic, and very small, category of people; more important, though, it also states that "it is the sense of Congress that ... the importance of the parole in place authority of the Secretary of Homeland Security is reaffirmed." This puts any future executive amnesty on a much firmer legal footing than the flimsy pretext of "prosecutorial discretion" that served as the rationale for DACA and DAPA.
A little background: "Parole" in the immigration context is the authority that Congress has granted to the executive to let certain people into the U.S. who otherwise have no right to enter. It's supposed to be a very narrow authority used "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit." It can be abused, of course, and should be much more narrowly circumscribed, but it's necessary for the executive to have that flexibility.
But parole in place is (or was) an abuse of this statutory power. It retroactively grants parole to illegal aliens who infiltrated the borders years in the past — essentially laundering their status. And parole doesn't just let you stay — it allows you to get a work permit, a Social Security number, and a driver's license. What's more, an illegal alien whose illegal entry is thus retroactively legalized can get a green card if he qualifies for one of the existing categories. The numerical limits on issuing green cards would remain, but be rendered moot, since the newly legalized illegal can live and work here for as long as it takes for his number to come up.
In other words, amnesty.
Slipping parole in place into the defense bill was not an accident. As Arthur points out, its supporters didn't propose just giving green cards for this tiny group of people because "members of the military and their family members are not the end game for many who pushed this proposal: legislating 'parole in place' is."
All very interesting, but so what?
Here's what: One of the major Democratic presidential candidates specifically based her immigration plan on extending parole in place to virtually the entire illegal population. Guess who.
Months before the defense bill was passed, Sen. Kamala Harris proposed giving so-called Dreamers (illegal aliens who arrived at a young age) parole in place and retroactively granting them work authorization for all previous (illegal) employment. In the words of her campaign website, "Kamala will use her parole authority under the Immigration and Nationality Act (INA) to create a first-of-its kind 'Dreamers Parole-in-Place Program.'" (Her old URL now forwards to the Biden site, but her immigration landing page is archived here, with more details here and here.)
Nor would this stratagem be applied only to those who had already been granted DACA status by Obama. Harris would dramatically widen eligibility for DACA, and use the parole in place gimmick to legalize illegal-alien parents with U.S.-citizen children (Obama's proposed DAPA program that was halted by the courts) and "to other law-abiding immigrants with ties to their communities."
In other words, Harris's plan is to unilaterally legalize pretty much all illegal aliens. And, as Arthur pointed out in a more recent piece, Republicans' gift in last year's defense bill "makes litigating against Sen. Harris's PIP proposals — if implemented — next to impossible."
It's true that Biden's page on immigration does not include any of this, saying only that he would re-instate DACA, but that "Dreamers and their parents should have a roadmap to citizenship through legislative immigration reform."
At a CNN town hall in April of last year, Harris said that:
I will give the United States Congress 100 days to get their act together and have the courage to pass reasonable gun safety laws. And if they fail to do it, then I will take executive action.
The impulse for a potential Democratic administration to circumvent Congress will not be limited to gun control. And on immigration, they now have the tool to do it.