Tag Archives: Obama de facto DREAM act

The Administration’s Deferred Action Policy: Is the Glass Half Full or Half Empty?

For the open borders advocate in the United States, policy changes which modestly expand the opportunity for more people to live and work legally in the U.S. create ambivalence. The beneficiaries of the changes gain access to the American job market and can live without the fear of deportation. At the same time, the limitations of the new policies highlight the plight of those still excluded from freely entering or staying in the U.S. The Obama administration’s Deferred Action for Childhood Arrivals, or DACA, which allows some undocumented immigrants to temporarily stay in the U.S., is a stark example of such a policy change.

The administration’s action certainly helps a sympathetic group of immigrants. Since August 2012, many undocumented individuals 30 years old or younger who came to the U.S. when they were younger than 16 have been eligible to receive deferred action, which allows them to stay in the U.S. and receive work permits for two years. Individuals have to have been in the U.S. for five years or more, have generally clean criminal records, and be in school, have graduated from high school, or be military veterans. The two year period is renewable. According to the National Immigration Law Center, over one hundred thousand immigrants have received deferred action under DACA, as of December 13, 2012. It is estimated that over 1.5 million immigrants could benefit from the administration’s action. These individuals could lead happier lives with unlimited work opportunities, access to driver’s licenses, and the chance to live without the fear of imminent deportation.

There are several reasons to be concerned about DACA, however. First, there are significant weaknesses in the policy itself. By applying for deferred action, undocumented immigrants are making the government aware of their immigration status, making them vulnerable to future deportation. According to a document produced by several legal groups, “Attorneys are advised to warn their clients in writing that even for prima facie eligible cases, deferred action is not guaranteed. The warning should further explain that applicants will be revealing and, in most cases, documenting their removability to a government agency that can initiate removal proceedings.” A future administration that is opposed to the policy could quickly rescind it. Underscoring the temporary nature of deferred action, the legal groups’ document states that “DHS can renew or terminate a grant of deferred action at any time.”

Second, some of the rhetoric by supporters of DACA suggests that the parents of the young immigrants are to blame for the perilous immigration status of their offspring. In announcing the new policy, Mr. Obama suggested these younger immigrants should not be deported “simply because of the actions of their parents.” (transcript of speech) This is reminiscent of comments made by those who want tighter immigration policies which blame undocumented immigrants for any suffering their children experience from immigration enforcement actions. As reported in the New York Times, Rosemary Jenks, from the restrictionist group NumbersUSA, “said the responsibility for the impact on children of the deportations rests with their parents. ‘If parents are going to come here illegally, unfortunately the child faces the consequences as well…’”

Such remarks by DACA supporters communicate the wrong message to the public about what has caused the young immigrants’ predicament. The threat of deportation for these immigrants ultimately stems from immigration restrictions, not from any fault of the parents. By bringing their children to the U.S. to improve their lives, the parents have shown great dedication toward them. Seeking a quality education, safety, and economic well-being for one’s children is the epitome of being a responsible parent. Conversely, keeping your children in a country that is unsafe, has weak schooling, and/or offers limited economic opportunities in deference to U.S. immigration laws could be considered poor parenting. The rhetoric also implies a dubious distinction between “worthy” immigrant sons and daughters who deserve protection and “unworthy” immigrant parents who do not. (The credit for this criticism of dividing immigrants into worthy and unworthy groups goes to the organization No One Is Illegal.)

Third, DACA protects only a small portion of undocumented immigrants from deportation. Most of the millions of undocumented individuals in the U.S. do not meet the criteria to apply for deferred action. This has been illustrated in recent cases reported in the media. In one, a Mexican woman and her daughter won money at an Arizona casino, but after the casino called the police when they thought their identification was fraudulent, the government learned that the two were undocumented. They were both arrested, but while the daughter was released because she qualified for DACA, the mother was deported because she did not qualify. In another Arizona case, a woman who had been granted deferred action status under DACA watched as her mother and brother were arrested by immigration agents at their home. The mother and brother were released the next day, apparently only because of pressure on the Obama administration, but still face the possibility of deportation. The pressure existed because the woman who had benefitted from DACA was a well-known advocate for young undocumented immigrants.

The policy is an example of the arbitrary and invariably unfair nature of immigration laws. For instance, it does not help immigrants who are 31 years old, who have only lived in the U.S. for four years and eight months, or who came to the U.S. when they were sixteen. It does not help those who did not complete high school, even though they may be upstanding members of their communities. No One Is Illegal has articulated nicely the inherent unfairness of having the government determine who may immigrate and who may not: “… the achievement of fair immigration restrictions… would require a miracle.”

Similar problems will arise should the DREAM Act or “comprehensive immigration reform” be enacted.  The only way to permanently fulfill the hopes and dreams of all immigrants is to regularize the status of current migrants and move towards open borders for prospective future migrants, possibly incorporating some of the keyhole solutions to address restrictionist concerns.  Not only will all immigrants gain when these changes are made, America will have instituted a just immigration policy it can be proud of.

Undocumented No Longer

I welcomed Obama’s “DREAM decree,” which just took effect on August 15th, with an article at The American entitled “A Face for the Faceless.” In it, I celebrated the career of Jose Antonio Vargas (life story, blog posts about him on Open Borders), characterizing his stance and that of the movement he is leading as civil disobedience:

By coming out publicly, Jose Antonio Vargas and many others have transformed the lawbreaking of illegal immigration into something heroic—civil disobedience. They have become, to adapt an exquisite phrase from writer David Bentley Hart, “a face for the faceless.”

Hart, describing the impact of Christianity on the culture of the late Roman Empire, writes that “to the literate classes of late antiquity … a rustic could not possibly have been a worthy object of a well-bred man’s sympathy,” and that the story, in the Gospels, of Peter weeping after he denied Christ on the eve of the Crucifixion, would “likely have seemed like an aesthetic mistake.” By contrast, in the Gospels and other Christian texts, “we see something beginning to emerge from darkness into full visibility, arguably for the first time in history: the human person as such, invested with an intrinsic and inviolable dignity, and possessed of an infinite value.” (Hart, p. 167)

To feel human sympathy for someone makes it much harder to abuse, exploit, or brutalize them, or in general, to do unto them as one would not have others do unto oneself. Over time, though sometimes with terrible tardiness, this new appreciation of human dignity has altered man and society, making charity more urgent and beautiful, making slavery first anomalous and then untenable.

I also explore the charge that Obama’s DREAM decree is a violation of the principle of “rule of law”: Continue reading Undocumented No Longer

Charles Krauthammer’s Take

Charles Krauthammer and Andy McCarthy are going after Obama most strongly on “rule of law” grounds. Krauthammer:

“With respect to the notion that I can just suspend deportations [of immigrants brought here illegally as children] through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”

Those laws remain on the books. They have not changed. Yet Obama last week suspended these very deportations — granting infinitely renewable “deferred action” with attendant work permits — thereby unilaterally rewriting the law. And doing precisely what he himself admits he is barred from doing.

Obama had tried to change the law. In late 2010, he asked Congress to pass the Dream Act, which offered a path to citizenship for hundreds of thousands of young illegal immigrants. Congress refused.

When subsequently pressed by Hispanic groups to simply implement the law by executive action, Obama explained that it would be illegal. “Now, I know some people want me to bypass Congress and change the laws on my own. . . . But that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”

That was then. Now he’s gone and done it anyway. It’s obvious why. The election approaches and his margin is slipping. He needs a big Hispanic vote and this is the perfect pander. After all, who will call him on it? A supine press? Congressional Democrats? Nothing like an upcoming election to temper their Bush 43-era zeal for defending Congress’s exclusive Article I power to legislate.

Yes, good point. It will be interesting to see how Obama explains this– and for that matter, who will challenge him on it. If it’s no one but Krauthammer and Andy McCarthy– not even the Romney campaign– that would be interesting too. What kind of precedent will this set? I doubt that the process issue will hurt Obama politically– possibly the policy substance of it might, though probably (and I hope) not. Aside from the point that Obama seems to have previously thought what he’s doing now is unconstitutional, Krauthammer dismisses the claim of “prosecutorial discretion”:

With a single Homeland Security Department memo, the immigration laws no longer apply to 800,000 people. By what justification? Prosecutorial discretion, says Janet Napolitano.

This is utter nonsense. Prosecutorial discretion is the application on a case-by-case basis of considerations of extreme and extenuating circumstances. No one is going to deport, say, a 29-year-old illegal immigrant whose parents had just died in some ghastly accident and who is the sole support for a disabled younger sister and ailing granny. That’s what prosecutorial discretion is for. The Napolitano memo is nothing of the sort. It’s the unilateral creation of a new category of persons — a class of 800,000 — who, regardless of individual circumstance, are hereby exempt from current law so long as they meet certain biographic criteria.

This is not discretion. This is a fundamental rewriting of the law.

I’m no lawyer and hesitate to take a stand… but I have some sympathy for Krauthammer on the legal question, though of course not on policy. Obama’s move does seem to be illegal in spirit. Continue reading Charles Krauthammer’s Take

Ruben Navarrette’s Take

Ruben Navarrette, a pro-immigration columnist, seems mad at Obama for his semi-amnesty. I can’t understand why.

Ruben Navarrette: Obama’s immigration con job (Indy Star)

President Obama’s recent immigration announcement is a moral hoax and a masterful political move.

Obama claims his administration will no longer deport young illegal immigrants if they meet certain conditions — i.e., if they are younger than 31, came here before they were 16, haven’t been convicted of a felony, have graduated from high school, attend college, or join the military.

Naturally, both the left and the right are pretty worked up. And yet, if you listen to the discussion, it’s clear that neither side understands what just happened — and, perhaps more importantly, what didn’t.

The left is driven by hope and the right is driven by fear. But they both arrived at the same place: a complete distortion of reality. Liberals — specifically, those pro-immigration-reform Latino voters who have been abandoned by Obama for the last three and a half years — are so desperate to finally have the president they voted for that every time Obama throws them a bone, they call it a steak dinner…

First, let’s get one thing straight. No matter what the media are saying, this is not really a new policy. The Obama immigration strategy is like a restaurant that keeps having its “grand opening” every few months in the hope that the gimmick will stir interest and attract customers. But with immigration, the only thing Obama is trying to attract is the Latino vote.

In March 2011, Obama told Univision’s Jorge Ramos that his administration had “refocused our efforts on those who have engaged in criminal activity” so that “we aren’t going around rounding up students.” The president called any accusation that they were deporting DREAMers — young people who might qualify for legal status under the DREAM Act because they attend college or join the military — “completely false.” Continue reading Ruben Navarrette’s Take

Is There a Downside to Presidential Nullification?

So I should have known: the most astute analysis of Obama’s semi-amnesty is by Bryan Caplan. In particular, Caplan gets at a thought that was starting to form in my mind, too, namely, what a nice thing a doctrine of presidential “nullification” might be. By “nullification,” I (and Caplan) mean that presidents could just decide not to enforce laws that they disagreed with especially strongly, which is suggested by Obama’s semi-amnesty. Of course, the Obama administration probably wouldn’t want to characterize it that way, and I’m sure the lawyers could develop other, less controversial defenses of the move which would have better (probably almost certain) odds of passing judicial muster. Or in brief: presidential nullification seems to be rather a constitutional innovation, of rather dubious legality, whereas Obama’s move is probably quite legally defensible on other, surer grounds. Still, it might set a precedent that would amount to a kind of doctrine of presidential nullification. Is that something that should make open borders support hesitate in applauding this? OK, strike that, stupid question; it’s pretty obvious that whatever constitutional principles are at stake are less morally urgent than the need to stop deporting innocent people. Let me rephrase: would there even be any significant downside to a doctrine of presidential nullification? Or as Kling and Caplan formulate it:

Kling: My reading of the policy is that the President is nullifying a law by refusing to enforce it.  That is a precedent  that could come back to haunt us.

Caplan: I say the laws on the books are so overwhelmingly wrong that even random Presidential nullification would be a huge expected improvement.  My question for Arnold: What’s the best law any future President is likely to nullify due to Obama’s precedent?  I just don’t see this slippery slope leading anywhere we should fear to slide.

Exactly. What if a President Romney refused to enforce the individual mandate provision of Obamacare? Fine by me. What if a President Romney passed de facto tax cuts by just instructing the IRS not to collect some kinds of tax? Well, 1) that wouldn’t be so terrible, and 2) it seems unlikely to happen.

Obama’s semi-amnesty does seem contrary to the spirit of the rule of law, even if he could probably make a strong claim that it’s legal. But we shouldn’t speak as if “rule of law” is an unqualified good. It depends on the content of the laws. If it’s a choice between a more chaotic situation and a more coercive situation, the former is usually better. Continue reading Is There a Downside to Presidential Nullification?