On June 15th Secretary of the Department of Homeland Security Janet Napolitano sent a memo to the heads of U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services and U.S Immigration and Customs Enforcement informing those agencies of the Obama administration’s unconstitutional decree regarding illegal immigration enforcement. The memo cites the department’s legal authority to choose who they will enforce federal statute on as “prosecutorial discretion”, which is specifically to be aimed at “certain young people.” New criteria are then spelled out. The three page memo rewrites current immigration law, a job the Constitution expressly gives to the Congress, and therefore is unconstitutional.
A president instructing the Homeland Security Secretary to re-write an existing law is inconsistent with our shared powers. The president is not a king. He can’t just enforce what he wants to and leave alone the parts he doesn’t like. This is President Obama’s understanding too, or at least it was before this election year began. Charles Krauthammer wrote a great column on this topic, which quotes Obama specifically saying that he cannot do what this June 15th memo does.
The motivation behind this subversion of constitutional rule is evident. Hispanic voting numbers are growing. The memo is directed to address all nationalities under this creative reach of prosecutorial discretion, but this clearly impacts the Hispanic community disproportionately then others. Great geographical barriers prevent Ukrainians and Australians from illegally entering our country in great numbers. Central America is a different story. Clearly the plan is to have as many 18-30 year old liberal leaning Hispanics out of custody by November and let their families, friends and registered voters know who helped them. Of course if you are not a citizen then you can’t vote, but how many members of Obama’s Truth Teams are asking for proof of citizenship when speedily registering people who want to vote for the president?
The Democrats have illustrated that they don’t care about the legality issue at all. Instead they argue that the ends justify the means, to hell with rules. Rep. John Conyers Jr. (D-Michigan) writing last week in the congressional newspaper The Hill described the president’s maneuver as “courageously announced” and then amazingly compares the Napolitano memo to Martin Luther King Jr.’s letter from Birmingham jail. The comparison is ridiculous, but if it were based on the fact that both were acts of defiance, then the comparison fits, although not in magnitude at all. But, of course, the White House is not arguing that the president has acted in defiance, they argue just the opposite. The prosecutorial discretion which serves as the legal basis is enough, and Napolitano’s memo goes out of its way to let you know that.
“This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.”
This final paragraph is a curious reassertion that the rule of law is being followed. Why does Napolitano feel the need to end by saying that her memo is legit, shouldn’t that be beyond implied?
This is all too bad because the criteria spelled out by Napolitano, a former governor, sounds like a solid piece of legislation. To be considered, an individual must fit into the following:
“-came to the United States under the age of sixteen;
-has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
-is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
-has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
-is not above the age of thirty.”
The substance of this policy is fine, I like the idea. The president needs to find a congressman who will drop it in the hopper. The candidates running this year can hit the stump and debate their position on it and then the legislative branch can do their job. The system is set up that way and the president needs to follow the rule of law.
Yesterday the immigration issue only remained controversial and ultimately still unresolved with the Supreme Court’s ruling upholding and striking down parts of the already famous Arizona immigration law. In a 5-3 ruling with Kennedy writing for the Court (Kagan recused herself), the Court struck down three provisions citing the federal government’s supremacy in immigration law. Scalia in dissent was described by Jeffery Toobin as being “more than usually outraged.” But the Court unanimously upheld one of Arizona’s provisions, the one which allows local law enforcement to ask suspects for immigration status when seeking information on other crimes. This gives the states some say in an issue the federal government has chosen to be absent on. The federal government has the power to write immigration policy but the Court is also saying that the states can enforce those policies themselves. It was one of those decisions where both sides claimed victory. Final outcome is still unclear because the case will be returned to Arizona where the remaining provision will be subject to the implications of potential racial profiling which the provision may or may not increase.
The political damage of this decision will harm Republican candidates across the board. The Ds will spin Napolitano’s memo and yesterday’s ruling as two examples of the Democratic Party trying their hardest to keep Hispanic families together while the evil Republicans just want to deport everyone who isn’t white. Unfortunately this spin may resonate. It is difficult to explain the constitutional restrictions placed on the president and much easier to say that 20 year old illegal immigrants can stay. It is difficult to explain that a state is a sovereign and therefore has prosecutorial discretion too. It is difficult to argue in favor of legal immigration channels while advocating deportation, whether or not the deportees are illegal is irrelevant in the spin zone. Complexity loses to simplicity every time. When one message includes reasons why you can’t do something and the competing message just simply says you can do something, then of course the latter will win out. Too bad respect for the rule of law, respect for shared powers, respect for our Constitution, and respect for the masses who follow the proper channels to legally immigrate here takes a backseat to doing whatever it takes to get re-elected.
I recently spoke about immigration with Tito Munoz, also known as Tito the Builder, a former candidate for Virginia State Senate and Hispanic business community leader. Tito and I agree that the Republican Party can easily attract more new citizens from Central and South America. One major point that Tito stressed to me was the GOP is the party of entrepreneurs, which needs to be better communicated to today’s young Hispanic laborers now as they begin to grow into tomorrow’s entrepreneurs. But Tito also mentioned one of the difficulties to recruit Hispanics into the Republican Party is because the Obama administration has tightened up certain kinds of visas which restrict the path to citizenship for the laborers and businessman who would typically be attracted to the GOP. If you are in academia, a field full of left wing crackpots, then your chance of obtaining a visa, a greencard, and become a citizen are far greater than if you are just a hard working construction contractor. We need infrastructure and our infrastructure will always need maintenance, but the president needs votes so our country will have to deal with crumbling roadways and overcrowded faculties at state run universities. A construction worker who understands the methods used in his trade and can demonstrate that in the hot summer heat all day long is a skilled worker who deserves fair consideration. College professors are nice too, but the supply side is doing fine. Who is skilled and who isn’t could certainly use a rewrite and political considerations should not come into play. Practical methods such as supply and demand are better suited for this than simply highest grade completed.
Senator Marco Rubio needs to be the GOP leader on immigration. He recently said that he would not push his own version of the DREAM Act through congress before the November elections, which is disappointing, but perhaps, politically speaking, the safer move. As the presidential nominee, Mitt Romney needs to pick up where Rubio has left off by providing some detail of a friendlier sounding immigration policy now that yahoos like Gov. Rick Perry are no longer competition. Romney, the businessman, needs to stay focused on his field of expertise; the economy. Romney should be able to incorporate the need for a sensible immigration policy by framing the issue into economic terms. Examples of this should include immigration’s effect on the unemployment rate, how the additional costs of illegal immigration enforcement impacts our debt ridden government, the effects illegal immigration has on our nation’s competitiveness in the world market, etc. And of course the Republican Party believes in legal immigration, which shouldn’t need to be stressed. We are a land of immigrants. It is disappointing to see Republicans’ respect for the law perverted into accusations of bigotry, but we can’t allow such a thing to let Republicans forget the distinction between legal and illegal immigration.
One thing we all need to appreciate is that having an illegal immigration problem is not a bad thing. It means that our country is worth living in at any cost. There are plenty of countries where people are begging to leave and nobody is trying to sneak in. Texans are not going to cross the Rio Grande to start a better life anytime soon. If they ever do, then that’s when we’ll be in serious trouble. Until then, comprehensive immigration reform which addresses the issue from an economic impact scenario while addressing in supply and demand terms the definition of a skilled worker needs to be a vital part of both parties’ national platform.