Today Is A-Day

By Mark Krikorian on August 15, 2012

National Review Online, August 15, 2012

What does President Obama call a bill which has repeatedly failed in Congress?

A law!

The Department of Homeland Security today begins accepting applications for the “Deferred Action for Childhood Arrivals” (DACA) amnesty program. The move will award renewable two-year grants of legal status, including work cards and Social Security numbers, to illegal aliens claiming to have arrived before their 16th birthday.

This is an administrative version of the DREAM Act, which Congress has repeatedly rejected. The White House claims it’s just setting enforcement priorities, exercising “prosecutorial discretion” over whom to arrest and deport, and that those who benefit are just getting a temporary reprieve from deportation.

That is a brazen lie. Yes, prosecutorial discretion is used by law enforcement all the time to prioritize resources; in the immigration context, that may mean that when an illegal-alien nursing mother is arrested, she’s given some kind of supervised release until her trial date rather than being held in detention.

But if you set up an application process for illegal aliens, complete with FAQs and fee schedules, the label “prosecutorial discretion” no longer applies, however often you repeat it to the media. The president couldn’t get Congress to approve this amnesty, so he simply ignored Article I of the Constitution and enacted the measure himself.

Advocacy groups rationalize this extra-legal measure by arguing, in effect, that the continued illegal status of this group of people is a national emergency of such existential importance that the Constitution must be set aside. The White House itself announced the amnesty under the rubric of its “We Can’t Wait” initiative — we can’t wait for Congress to act; we can’t wait for constitutional niceties to be honored; we can’t wait for democracy.

The president knows what he’s doing is unconstitutional. We don’t have to read his mind to know this — he’s said it repeatedly. In July of last year, he told the National Council of La Raza, “The idea of doing things on my own is very tempting, I promise you, not just on immigration reform. But that’s not how our system works. That’s not how our democracy functions.” In September he told some journalists:



I just have to continue to say this notion that somehow I can just change the laws unilaterally is just not true. We are doing everything we can administratively. But the fact of the matter is there are laws on the books that I have to enforce. And I think there’s been a great disservice done to the cause of getting the DREAM Act passed and getting comprehensive immigration passed by perpetrating the notion that somehow, by myself, I can go and do these things. It’s just not true.


The post hoc rationalization is that the president hasn’t given in to the temptation of “doing things on my own” because he hasn’t really amnestied those signing up for today’s amnesty. Here’s the disclaimer on the DHS website:





This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.



We have lots of experience with temporary immigration statuses that “may be modified, superseded, or rescinded at any time without notice” — they’re never modified, superseded, or rescinded without notice, and everyone involved in this amnesty scheme knows that. The closest parallel is “Temporary Protected Status,” which gives a similar reprieve from deportation, plus work cards and Social Security numbers, to illegal aliens we don’t want to deport because of natural disaster or civil strife in their home countries. (This mechanism was at least created by Congress — you know, an actual law.) Hundreds of thousands of illegal aliens have benefited from this form of amnesty, and not a single one has ever been required to leave because his status was modified, superseded, or rescinded. Most notable are the thousands of Liberian illegal aliens who received this status during that country’s civil war; they’re all still here, more than 20 years later.

There is no chance — none whatsoever — that any illegal alien who is amnestied under the president’s DREAM scheme will ever have that status “modified, superseded, or rescinded.” Presidential administrations will likely renew it every two years until Congress, as part of some larger legislative package, converts all of these illegal immigrants to regular permanent residents on track for citizenship.

As the unofficial motto of the immigration bar says, “It ain’t over ’til the alien wins.”

The estimated number of beneficiaries has been steadily climbing, even before today’s start date for applications. Boosters of the DREAM Act originally said it was just for the 60,000 promising young illegal aliens who graduated from high school each year — conveniently ignoring the accumulation of each year’s total. The estimate grew to 800,000, then 1.4 million, and then 1.75 million, and it could be as high as 2 million.

And those are estimates only of the legitimately eligible. There’s likely to be a huge amount of fraud, given the hurried, last-minute nature of the program and the political pressure on the bureaucracy to approve as many applications as possible. Just one example: There will be virtually no interviews of DACA amnesty applicants, because the entire process will be based on mail-in paper applications. This is necessary because to do otherwise would be expensive and slow, and the White House’s goal here is to amnesty as many illegal aliens as physically possible as quickly and cheaply as possible. Unfortunately, the lack of interviews means the requirement that applicants be no older than 30 is rendered almost meaningless, since 55-year-olds with the right fake documents can just claim to be 29, and no adjudicator will be able to see otherwise.

In the end, of course, today’s amnesty is a purely political move. According to a report I received second-hand, but which sounds eminently plausible, White House insiders were so frightened by the drop in Hispanic voter registration that they concluded a dramatic, attention-getting stroke was needed — regardless of its impact on the constitutional order and regardless of the president’s earlier statements ruling it out. Apparently, what happens after November 6 doesn’t matter — even if this move establishes a precedent that would allow, say, a President Romney to abolish the capital-gains tax by executive fiat.

Democrats in Congress, whose constitutional prerogatives are being trashed by the White House, have applauded this usurpation because it gives them a victory they couldn’t achieve through lawful means. They will eventually have to decide whether the legislative branch has a role in making law or whether, as Gibbon noted of the Roman Senate in his Decline and Fall, our Congress is nothing but a “a venerable but useless monument of antiquity on the Capitoline hill.”