CIS Executive Director Mark Krikorian and others affiliated with the Center (Jessica Vaughan and David North, for instance) have written extensively about President Obama's amnesty-by-fiat.
The program is titled in typical bureaucratese as "Deferred Action for Childhood Arrivals" (DACA) by the Department of Homeland Security (DHS), which will be charged with carrying out the program. One suspects that the DHS apparatchiks who developed such a boring title were hoping that the program would be able, chameleon-like, to melt into its surroundings and avoid further controversy. If so, they were wrong — but then, much about DHS's immigration calculations is wrong these days, isn't it?
There is ample reason to question the constitutionality of the program, which was a blatant circumvention of the legislative authority of Congress and which, in the end, will unlikely do the recipients any good as it does not confer on these individuals any permanent right to remain in the United States — at least not unless and until the creative minds of this administration and its Department of Homeland Security come up with some further corrosive method of subverting federal immigration laws.
But already having blown past the subtle niceties of constitutional divisions of power between the legislative and executive branch, why worry about lesser laws? I'm thinking, for instance, of the little-known, but important Administrative Procedures Act (APA), codified at 5 U.S.C. 500 et seq. Although on the surface, the purpose of the statute is to prevent agencies from unilaterally, and outside the public eye, engaging in rule-making or regulatory over-reach, looking deeper one understands that its fundamental protection is to curb abuse of executive power and the growth of despotism in government. Former Senator Pat McCarran (D-Nev.) allegedly described the APA as "a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated" by federal agencies.
In brief, the APA requires agencies to publish in the Federal Register any proposed rules, regulations, procedures, or other initiatives that have a public impact. The APA requires the publication to occur well in advance of the proposed implementation date to allow all interested parties ample time to comment on the proposed rules. It is an important exercise in participative democracy, and most agencies (and administrations) take it seriously. Apparently not here, not now.
As was widely reported in many television and print media outlets, the program started taking applications from illegal aliens on August 15 — note the date. Yet, it wasn't until a day later, August 16, that a Federal Register notice appeared soliciting public comments on this deferred action initiative. And the notice is a masterpiece of fuzzy obfuscation: It offers for review and comment no actual, detailed rules that will be applied in adjudicating the requests; instead, it only solicits comments on the questions to be posed on the form DHS has developed to accept DACA applications, categorizing the notice as an "information collection" exercise. But how serious can an agency be in posting anything for review and comment when it has already begun taking applications?
DHS has justified this post-facto publication in the Federal Register of what it has already put into action by citing the emergency provisions of the APA. But what, exactly, is the "emergency"? It's not like the aliens were not already physically present — at least they're supposed to have been if they are really eligible, but that's another whole story, isn't it (wink-wink, nod-nod)? And it's not like there is any catastrophic moment moving toward us that requires prompt action. The program may in fact be a catastrophe in the making, but I don't think that's what the legislators who enacted the APA had in mind when they established emergency promulgation provisions under the law.
Those of a historical bent might recall that the law that still forms the undergirding of the present Immigration and Nationality Act is still often referred to as the McCarran-Walter Act (yes, the same McCarran mentioned earlier). That is what makes it particularly ironic that the administration has chosen to play fast-and-loose with the APA in regard to this immigration initiative of dubious wisdom and constitutionality. Where is the "transparency" that candidate Barack Obama promised the American people when campaigning for office the first time around?
And as to the open borders and illegal alien advocacy groups that have applauded the administration for this venture in recklessness: remember that what goes around, often comes around. If you are willing to see administrative actions used to chain-drive changes to immigration law instead of relying on the legislative process, and to accept flagrant misuse of the regulatory promulgation and comment processes now, then you will have no basis for complaint when those same methods are used to put forward programs that aren't so much to your liking. The seeds have been sown.