By Joe Guzzardi
February 20, 2015
Comprehensive immigration reform’s first death knell sounded in 2012 when President Obama unilaterally removed some young adult aliens from deportation, rewarded them with Employment Authorization Documents (EADs), and issued them Social Security numbers. Called deferred action for childhood arrivals (DACA), the program went beyond Obama’s constitutional authority, and put enforcement advocates on high alert that the president had embarked on a path to dismantle immigration law.
A few months later, Senate Democrats voted unanimously to pass an immigration bill that was impossible for the House to take up, another nail in reform’s coffin. The Senate’s legislation would have amnestied 12 million aliens, given them work permits as well as access to entitlements and eventual citizenship. Additionally, it ignored border security, would have provided visas to as many as 300,000 foreign-born workers, many of them low-skilled who would have squelched unemployed minority Americans’ opportunities. House representatives knew that while the Senate’s version of immigration reform might be popular on Capitol Hill, it wouldn’t play back home, especially in more conservative districts. Unknown Dave Brat’s stunning Virginia primary victory over House Majority Leader and reform advocate Eric Cantor was an excellent example of grassroots resistance.
Frustrated by the mid-term election results that repudiated his immigration agenda, Obama set the wheels in motion for his executive order that, earlier this week, Texas federal judge Andrew Hanen temporarily blocked.
Yet the consequences of Judge Hanen’s decision are misunderstood. The erroneous interpretation is that illegal immigrants who would have been protected from deportation had Obama’s prosecutorial discretion action proceeded are now at risk. But Judge Hanen wrote specifically that his ruling does not affect federal deportation policy: “The Court notes that there is no indication that these individuals will otherwise be removed or prosecuted. They have been here for the last five years and, given the humanitarian concerns expressed by Secretary Johnson, there is no reason to believe they will be removed now.” The White House, which will appeal to the Fifth Circuit Court, can still decide which aliens to deport and which will remain.
Judge Hanen concluded that Obama’s executive action should be provisionally barred because the executive branch cannot legally confer benefits to illegal immigrants. From his decision: “Obviously, this injunction (as long as it is in place) will prevent the immediate provision of benefits and privileges to millions of individuals who might otherwise be eligible for them in the next several months under DAPA [Deferred Action for Parents of Americans] and the extended-DACA.”
Furthermore, Judge Hanen recognized that prosecutorial discretion is limited to non-enforcement of immigration law and doesn’t entitle the president to grant affirmative benefits like work permits or welfare without statutory authority and notice-and-comment rule-making, both of which Obama ignored.
As Judge Hanen’s ruling explained, the Department of Homeland Security has not merely instructed its officers to refrain from detaining, removing or prosecuting unlawful aliens, but has also “enacted a wide-ranging program that awards legal presence to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel.”
Legal experts note that the Fifth Circuit Court is one of the nation’s most conservative, and that the appeals process averages between six and nine months. Finger-pointers railing against the House as the cause for stalled reform should include Obama and Senate Democrats among their targets. For more than two years, the president and his Senate allies have been guilty of gross overreach which doomed any chance of agreeing with the House on bipartisan immigration legislation.
Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow. Contact him at [email protected]