What Next on Immigration?

By Mark Krikorian on June 21, 2012

National Review Online, June 21, 2012

Mitt Romney will address the National Association of Latino Elected and Appointed Officials (NALEO) today, and will no doubt continue his evasions regarding the president's unconstitutional DREAM decree, which grants amnesty to perhaps 1.4 million illegal immigrants without permission from Congress.

One thing that Romney, and the GOP more generally, should consider is what's next. If the president gets away with this usurpation of legislative authority, what other immigration measures might we expect? After all, Friday's amnesty decree didn't happen in a vacuum — it was the result of the administration's getting away with a whole series of earlier, less sweeping administrative amnesty measures.

As many have noted, as late as last fall the president responded to advocacy-group demands that he unilaterally grant amnesty to illegals who came here before age 16 by saying he had no such legal authority:

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.

What changed? Many suggest that politics drove the decision, specifically the desire to head off Senator Marco Rubio's effort to push a modified DREAM Act and to juice up enthusiasm among Hispanic activist groups for the president's reelection. While that is no doubt true, one needs to ask why the White House thought it could get away with such a shocking power grab. And the answer is that no one stopped them before, so they figured (probably accurately, it turns out) that they could go farther.

The roadmap for the administration's administrative amnesty strategy was laid out in a series of internal DHS memos. The overall goal is set out in a June 2010 installment entitled "Administrative Alternatives to Comprehensive Immigration Reform":

In the absence of Comprehensive Immigration Reform [i.e., an amnesty passed by Congress], USCIS can extend benefits and/or protections to many individuals and groups . . . The following options — used alone or in combination — have the potential to result in meaningful immigration reform absent legislative action.

Subsequent directives (the "Morton Memos") in 2011 spelled out whole categories of illegal aliens who were to be effectively exempted from deportation, though in a less formal way than described in last week's decree. The categories of people included DREAM Act–eligible people, those with citizen or legal-resident relatives, those caring for sick relatives, the old and the young, those with "ties and contributions to the community," etc.

Later directives from DHS prohibited the Border Patrol from checking for illegal immigrants at bus stations and other transportation hubs near the border; ended consular interviews with visa applicants from dozens of countries in order to speed up their admission; replaced worksite enforcement with audits of personnel files, scrupulously arranged so as not to arrest any illegal immigrants; reduced immigrant detention, thus encouraging illegal immigrants to abscond; and instructed the Border Patrol to simply release any "low-priority" illegals that it catches.

The earlier memos also laid out a series of more technical changes that could allow thousands of illegal immigrants to stay here legally, some of which have also been implemented.

The White House, having gotten away with all this, must have seen the DREAM decree as less risky than it might have early in the president's term. No need to fuss over "laws on the books that I have to enforce" when you've gotten away with not enforcing so many of them.

Which brings us to the June 2010 memo option entitled "Increase the Use of Deferred Action," which is precisely the vehicle President Obama chose for last week's decree. In fact, the language of the memo seems almost quaint in light of the huge numbers of illegal immigrants who could benefit from the president's decree (emphases mine):

Rather than making deferred action available to hundreds of thousands and as a non-legislative version of "amnesty," USCIS could tailor the use of this discretionary option for particular groups such as individuals who would be eligible for relief under the DREAM Act (an estimated 50,000).

The president's "tailored" decree would cover up to 1.4 million people, according to the Pew Hispanic Center, and not the 50,000 that advocates had been falsely claiming. Having gotten away with this, the White House may well be thinking it can get away with "a larger registration program that reaches the entire legalization population," in the words of a February 2010 memo also exploring administrative amnesty options.

But the White House might figure that, even with Congress's track record of supine compliance, simply extending the "deferred action" approach to millions more illegals could be politically problematic; as the February 2010 memo muses:

A program that reaches the entire population targeted for legalization would represent use of deferred action on a scale far beyond its limited class-based uses in the past (e.g. for widows). Congress may react by amending the statute to bar or greatly trim back on deferred action authority.

One thing we might expect, then, is the application of the formal deferred-action amnesty, complete with work authorization, not to all illegals but to the categories of people already informally exempted by the Morton Memos from deportation — anyone with citizen or resident family members, the old, the young, those with ties to the community, etc.

A different approach — based on an actual statute but much more sweeping than last week's DREAM amnesty decree — is Temporary Protected Status for all illegals from Mexico. TPS allows the executive branch to let illegal immigrants stay and work if it's impractical for them to return because of natural disaster or civil strife. But, like Obama's DREAM amnesty decree, it's not "temporary" at all — it is regularly renewed, and to the best of my knowledge not one of the hundreds of thousands of TPS beneficiaries over the years has ever been made to leave because the status was discontinued. In fact, there are thousands of Liberians who were first granted TPS in 1991 — and they're still here.

TPS for all Mexican illegals would give amnesty to perhaps 6 million people. There are another nearly 2 million illegals from Central America, whom Obama could also treat similarly by way of TPS; the half-million Guatemalans might be the most likely candidates.

Even more comprehensive than TPS would be a grant of asylum to illegal immigrants. Asylum isn't even nominally temporary; after one year, recipients can get a green card, and eventually they could be given citizenship. Asylum is granted based on persecution or a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." It is the fourth criterion in this list — membership in a particular social group — that is most amenable to the administrative amnesty approach. Originally conceived as covering kulaks and aristocrats fleeing Communism, it has been expanded to include women who don't like the strictures of traditional societies, homosexuals, the handicapped, and others. Expanding "particular social group" to include, say, all those from Mexico or Central America who fear cartel violence could be another vehicle to provide amnesty to millions of illegal immigrants.

The president has administrative tools at his disposal to give amnesty to virtually all illegal aliens without involvement from Congress, despite the Constitution's requirement that he "take Care that the Laws be faithfully executed." Only fear of a political firestorm, and the subsequent congressional changes in statute and funding, prevent him from trashing the separation of powers by unilaterally implementing "comprehensive immigration reform," and such a firestorm has not developed. The only glimmer of hope for the preservation of constitutional checks and balances in immigration came earlier this month (before the DREAM decree) when the House approved an amendment (with ten Democratic votes) to deny funding to the Department of Homeland Security to implement the aforementioned Morton Memos. Of course, Senate Democrats will not allow the amendment to stand. But if there is not some substantial pushback, we can expect more amnesty decrees in the future, especially if the president wins a second term.