It's A Whole New Ballgame; Napolitano, ICE Sued over Prosecutorial Discretion

Published on August 25th, 2012

Since June 2011, when Immigration Customs and Enforcement Director John Morton issued his first prosecutorial discretion memo which announced that ICE priorities would shift away from deporting non-criminal aliens, outraged Americans have wondered who would step forward to fight for us.

In the intervening year, President Obama upped the ante when his executive order for “Deferred Action for Childhood Arrivals,” a broader form of prosecutorial discretion, took effect. DACA gives aliens age 16-30 protection against deportation and work authorization.

Today is the administration's day of reckoning. In a federal lawsuit filed in Texas, 10 immigration agents including union president Chris Crane sued the Obama administration and said that the president’s immigration policies force them to violate their oaths of office.  A federal law passed in 1996 required agents to put into deportation proceedings all those who enter the United States illegally. The lawsuit states that Obama’s directive "unconstitutionally usurps and encroaches upon the legislative powers of Congress."

Some of the agents report that they have been threatened to either obey the administration’s new and illegal guidelines or be reassigned to less desirable positions, commonly referred to in the agency as “adverse employment action.”

Napolitano has repeatedly refused to rescind Obama’s unconstitutional directive. In a recent exchange with Rep. Steve King (R-IA), Napolitano told him under no conditions would she consider revoking it.

Kansas Secretary of State Kris Kobach and immigration advisor to presumptive Republican presidential nominee Mitt Romney represents the agents.  NumbersUSA is helping to underwrite the legal action.

Capitol Hill enforcement advocates were quick to hail Kobach and NumbersUSA.. In a statement issued with his fellow Texas Republicans Reps. John Carter and Louie Gohmert, House Judiciary Committee Chairman Lamar Smith said:

“The Obama administration makes it impossible for ICE agents to do their jobs. Instead of enforcing the law, the Obama administration requires ICE agents to release illegal immigrants.” [Napolitano Sued over New Immigration Policy, by Jordy Yager, The Hill, August 23, 2012]

Arkansas Senator John Boozman and Louisiana Senator David Vitter also support the complaint.

In his forceful statement Senator Boozman said:

"The Administration's directive is a clear violation of the law, circumventing the authority of Congress for the sake of political posturing while weakening our system of checks and balances. Not only did President Obama bypass Congress in approving this policy but Secretary Napolitano has failed to adequately provide guidance and direction to agents in the field as to how they are to comply with this misguided order.

“We must hold those who are breaking the law accountable and allow law enforcement the ability to do their job. Instead, this is a backdoor path to amnesty. We are a nation of laws but the President is stepping beyond his authority by determining what laws must be enforced. Americans deserve immigration reform, secure borders and improved workplace verification to hold employers accountable for hiring illegal workers.”

Senator Vitter added:

"These agents' mission is to keep our borders secure but the head of their agency is directing them otherwise, telling them to undermine their missions and contradict immigration law. I'm fully supportive of their efforts today. They just want to do their job, keeping our borders secure. It's not necessary to rewrite the law on this one; it's a matter of the administration upholding the current immigration laws."

And from Senator Jeff Sessions:

“The president's unilateral pursuit of far-reaching amnesty has not only undermined this progress [on immigration reform] but reversed it. The men and women who swore an oath to uphold the law and protect the public safety are now forced to ignore the law if they are to remain secure in their jobs."  [Immigration Lawsuit Stirs Up Congressional, Presidential Politics, by Niels Lesniewski, Roll Call, August 23, 2012]

The Kobach-led lawsuit will have repercussions in the presidential and Congressional elections with the strong probability that unintended consequences will evolve from Obama’s increasingly liberal immigration policies that defers all but criminal aliens. Expect immigration to be a focal point in many post-Labor Day campaigns.

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