February 20, 2015
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Earlier this week, Texas Federal Judge Andrew Hanen ordered President Obama’s executive immigration action temporarily halted. And while the president will comply, his Justice Department plans to file an emergency appeal in the Fifth Circuit Court. Some legal scholars predict that the appeals court will, after months of review, uphold Hanen’s order.
Since November when Obama first announced his plan, the attention in Congress and in the media has been on the roughly five million unlawful immigrants who will be protected from deportation. But that’s not what led to the Judge Hanen’s ruling.
The chance of an illegal alien being deported is so slim that Obama’s action hardly matters. In his interview with the Los Angeles Times, former Immigration Customs and Enforcement Acting Director John Sanweg — a man with first-hand knowledge — said that the deportation chance for a non-criminal alien is “close to zero; it’s just not likely to happen.”
What doomed Obama’s plan was conferring benefits to illegal immigrants which are intended exclusively for citizens and legal immigrants — work permits, Social Security numbers and welfare access. The White House was prepared to issue documents to individuals for whom they are not intended.
Since Obama’s 2009 inauguration, the president has made a series of under the radar changes in immigration law without congressional approval. The revisions have affected the border and the interior, the two key elements of enforcement.
Securing the interior, especially at the workplace, has always been vital to effective immigration reform. But that changed in 2009 when ICE detained 28 illegal immigrants at a Bellingham, Wash. machine shop where they used falsified identification and stolen Social Security numbers to gain employment.
At that point, then-Department of Homeland Security Secretary Janet Napolitano investigated the ICE agents, and castigated them for doing their jobs. Deputy Assistant DHS Secretary Esther Olavarria then announced in a conference call to employers and immigration advocates that: “We’re not doing raids or audits under this administration.”
On the southern border, the first point of resistance, conditions grew even more lax than they had been under previous administrations. The difference is that Obama was more proactive in dismantling immigration law than his predecessors.
On March 16, 2010, Napolitano announced that, effective immediately, DHS would end funding for the virtual fence along the southwest border because the technology had been plagued with cost overruns and missed deadlines, an excuse critics rejected as dishonest. The Secure Fence Act became law in 2006, but has never been implemented.
Later in 2010, the Houston Chronicle reported that DHS dismissals of deportation cases had increased dramatically during the year. The Chronicle revealed that DHS had ordered Houston lawyers to apply “prosecutorial discretion,” the same reasoning Obama used to justify his executive action, on immigrants who have lived in the U.S. for two years and have no “serious” criminal history.
The government definition of “serious” is broad. Ultimately, records obtained by USA Today showed that crimes not considered “serious” included kidnapping, sexual assault, and murder.
What will happen in the appeals court is the question on everyone’s mind. Texas Governor Greg Abbott, whose state filed the suit against Obama, expects to prevail. Abbott will point to the 22 times Obama declared that he did not have the authority to stay deportations.
Then, after Obama reversed himself, he admitted to an audience of his supporters that “I’ve just taken an action to change the law,” something that the Executive Branch can’t do and which violates the Constitution.
Joe Guzzardi retired from the Lodi Unified School District in 2008. He is currently a Californians for Population Stabilization senior writing fellow. Contact him at [email protected].