Freedom Line Blog

Who better than a former federal prosecutor to judge whether President Barack Obama can unilaterally impose amnesty for illegal immigrants via “prosecutorial discretion”?

Andrew C. McCarthy, now a contributor at National Review, explains: “Prosecutorial discretion means you are not required to prosecute every crime”, but it “does not mean that those crimes the executive chooses not to enforce are now no longer crimes.”

Yet that’s just what President Obama is proposing.

“He is claiming not only the power to determine what immigration laws get enforced and which illegal immigrants get prosecuted – power he unquestionably has,” writes McCarthy. The president, “also claims the power to declare (a) that criminal acts are somehow lawful – that illegal aliens now have a right to be here – just because Obama has chosen not to prosecute them; and (b) that those who engage in this unprosecuted activity will be rewarded with benefits (lawful presence, relief from deportation, work permits, etc.), as if their illegal acts were valuable community service.”

In other words, Obama’s amnesty perverts prosecutorial discretion beyond recognition.

Next up: Consequences?

Thursday, November 20, 2014, could be a day of infamy if President Barack Obama follows through on indications he will act on his own to give some form of legal status to as many as five million illegal immigrants.

Some conservatives say liberals can’t defend Obama’s lawless action, but there is no consensus among the former on what to do if the president intentionally violates his duty to faithfully execute the law.

U.S. Senator Ted Cruz (R-TX) calls on his fellow Republicans not to “confirm a single nominee – executive or judicial – outside of vital national security positions, so long as the illegal amnesty persists.”

Charles Cooke of National Review cautions against adopting The Obama Rule – picking and choosing which law a president will enforce – when the GOP next controls the White House. Among other things, doing so would forever obliterate the Republican claim to defend the Constitution and the principles it preserves.

Of course, all of this could be avoided if a certain former constitutional law professor would step back from the precipice. A little self-restraint would go a long way toward reestablishing appropriate boundaries on what the most powerful man in the world can, and cannot, do.

If so, then tomorrow won’t go down as the day The Obama Rule officially replaced the Rule of Law.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

In an interview with CFIF, Mark Krikorian, Executive Director of the Center for Immigration Studies, discusses President Obama’s refusal to wait for Congress to act on immigration, why proposed executive action presents a separation of powers issue, and what legal challenges and other remedies may await the Obama’s Amnesty decree.

Listen to the interview here.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

One of Congress’ biggest amnesty boosters is telling allies to “get ready” for a presidential announcement that could shield as many as 5 million illegal immigrants from deportation.

Rep. Luis Gutierrez (D-IL), an amnesty supporter who called on fellow Hispanics to “sign up to vote and punish those who speak ill and criminalize children who come to our border,” expects to hear very soon that President Barack Obama will issue an executive order to effectively legalize half of the United States’ illegal immigrant population.

“It’s music to my ears that someone would have a source at the White House that say it’s 5 million,” Gutierrez said on MSNBC today. “Let me just say, tomorrow, the next day, and all of this week we’re getting ready.”

By “getting ready,” Gutierrez means preparing to process 5 million quasi-legal residents into semi-permanent status. The problem is, Gutierrez has no idea what those structures will look like – or how they’ll be funded – because Congress has refused to pass any type of immigration reform that includes amnesty or anything like it.

Perhaps President Obama will opt for the complex “Registered Provisional Immigrant” status outlined in the Senate Gang of Eight bill that died in the House of Representatives. After all, Gutierrez and other amnesty supporters have “urged Obama to legalize all of the illegal immigrants that would have qualified under the Senate’s amnesty bill,” reports Breitbart News. If Obama can achieve the same policy goal as Congress, why can’t he do it using the same policy means?

Besides, just because the legislative branch won’t pass a law doesn’t prohibit the executive from doing whatever he wants, right?

Today, Gutierrez may be gleeful at the prospect of Obama violating the Constitution to benefit his pet issue, but he should remember: Once you brush aside the separation-of-powers, there’s no check on tyranny. Tomorrow, you lose.

Robert Delahunty, a former Department of Justice attorney, poses an interesting counterfactual to those defending President Barack Obama’s possible legalization of 5 million illegal immigrants.

“One has to wonder how those who consider such non-enforcement to be constitutional would react if a President Mitt Romney announced that his Internal Revenue Service would simply stop collecting capital gains tax on the rich, or that his Environmental Protection Agency would no longer seek to impose legal penalties on polluters,” writes Delahunty.

Delahunty’s thought experiment is worth elaborating. If it’s true that presidents can assume lawmaking powers when Congress refuses to implement his will – a point I’m only granting for the sake of argument; Articles I and II of the Constitution clearly foreclose this possibility – then it stands to reason that any Republican running for president in 2016 can simply campaign on a promise not to enforce any law he does not like. Why worry with winning control of Congress? All any political party needs to do is win one race – the presidency – and the entire executive branch can be put in the service of the party’s platform.

It’s an outcome so at odds with our constitutional system that in saner days it would have been ruled out as a serious option as soon as it was floated. But we are in transformative times. Future presidents and their would-be advisors are taking notes. If President Obama is allowed to get away with such a regime-shattering power grab – and unilaterally importing 5 million new citizens would be just that – then there is very little reason to justify limits on even bigger abuses hereafter.

A Border Patrol memo obtained by the Washington Times and referenced today in a Senate hearing identifies the main reason Central American women and children are risking illegal entry into the United States – A guaranteed ‘free pass’ by federal government.

“The immigrants come seeking ‘permisos,’ which apparently are the ‘notices to appear,’ the legal documents given to non-Mexicans caught at the border,” reports the paper. “Those notices officially put the immigrants into deportation proceedings. The immigrants usually are released to await a court date, giving them a chance to fade into the shadows in the interior of the U.S.”

According to the Border Patrol memo, “This information is apparently common knowledge in Central America and is spread by word of mouth and international and local media.” It goes on to say that, “A high percentage of the subjects interviewed stated their family members in the U.S. urged them to travel immediately, because the United States government was only issuing immigration ‘permisos’ until the end of June 2014.”

The only permissive immigration policy I’m aware of that is slated to end this month is President Barack Obama’s Deferred Action for Childhood Arrivals – or DACA – program.

In my column this week I explain how President Barack Obama’s Deferred Action program impels more illegal immigrants to bring or send for their children, hoping that once here the federal government will expand the de facto amnesty program.

Recently, President Obama announced that he is extending DACA another two years to the end of his presidency. That means we can expect to see increasing numbers of Central American and perhaps other illegal immigrants flooding into the country seeking those promised “permisos” that allow them to drift into the shadows and avoid deportation.

Given enough time to put down roots perhaps they’ll demand to come out of the shadows on a pathway to citizenship.

How’s this for gratitude?

A group of pro-amnesty activists chained themselves to the White House fence this week demanding that President Barack Obama stop deporting an estimated 1,000 illegal immigrants a day, reports USA Today.

The chain gang members are affiliated with the National Day Labor Organizing Network. Their specific demand is pretty breathtaking, even by liberal standards.

From their radical perspective, President Obama “has the power to reduce deportations, the legal authority to expand deferred action, and the political obligation to lead the national debate through bold action.” “Unless the President alters course, he risks cementing his legacy as having presided over the most anti-immigrant administration in history,” NDLON’s executive director said in a statement to the Washington Post.

Remember, this is the same president who unilaterally implemented the DREAM Act last summer through executive order, even though the bill has never been passed by Congress. By presidential fiat, up to 1.6 million illegal immigrants will not be deported as required by law.

But NDLON wants more. They claim that despite any explicit statutory or constitutional authority the president has the power to expand deferred action to all illegal immigrants, effectively granting amnesty to 11 million people.

To his credit, President Obama says it can’t be done. Doing so “would be ignoring the law in a way that would be very difficult to defend legally,” Obama told an interviewer on Telemundo.

Much like the administration’s decision last week not to grant an ObamaCare waiver to certain unions, the president’s refusal to double-down on lawless amnesty is an encouraging sign that some measure of respect for the rule of law is emerging at the White House.

Let’s see if it lasts.

So far, a busy half week on Capitol Hill saw Senator John Kerry (D-MA) become Secretary of State after the U.S. Senate confirmed him 94-3; gun-control politicians getting righteous blowback from the NRA and an advocate for young mothers; and another round of immigration reform heating up.

On this last point, it’s helpful to remember that a big part of what’s missing from the illegal immigration debate is how to fix the problems with the legal immigration system.  For an idea of how byzantine is the process of getting into America the right way, check out these charts prepared the libertarian Reason Foundation and the liberal Immigration Road.  (Each is a pdf.)

The worst lowlight: Waiting up to 28 years to become a citizen.

But before policy wonks and political advocates jump to conclusions and start proposing ways to fix immigration by reducing wait times and streamlining the process, it’s worth having a serious national discussion about what principle should drive our immigration policy.

If it’s about the national interest, in this case defined as what’s best for Americans already here, then it’s far from clear how importing any foreign workers, skilled or unskilled, improves the economic lot of domestic skilled and unskilled workers.  If anything, basic economics suggests that importing more labor reduces the value of the labor already here, which, while a boon for employers, translates into a pay cut for workers.  (For more on this, see Mark Krikorian’s thought-provoking book, “The New Case Against Immigration.”)

On the other hand, if immigration policy is about ensuring that America is the preeminent land of opportunity within the world community, then a small but clear set of filters (e.g. screening out convicted criminals, terrorists, and those fleeing tax problems) need to be put in place to allow the greatest number of opportunity-seeking immigrants to come, live, and hopefully contribute to the nation’s growth.

Personally, I’m conflicted about which route to take.  With Americas suffering from 7.8 percent unemployment – which is really 14.4 percent when underemployed and those too discouraged  to look for work are counted – it’s hard to justify adding to the labor market.  And yet an immigration policy focused on opportunity for those seeking it is an attractive extension of Ronald Reagan’s city on a hill, of which he said “And if there had to be city walls, the walls had doors and the doors were open to anyone with the will and the heart to get here.”

This much I do know: Finding a solution to the illegal immigration problem can’t be done until Americans decide on legal immigration’s foundational principle.

Peter Beinart says the GOP’s “Hispanic problem” is about more than just immigration reform and competing forms of amnesty:

Hispanics do feel that the economic system is “stacked against them” and they do “want stuff” like health care, college-tuition assistance, and other government benefits that might help them get ahead. According to Pew, while only 41 percent of Americans as a whole say they want a bigger government that provides more services, a whopping 75 percent of Hispanics do.

Food for thought for those thinking Marco Rubio’s version of the DREAM Act or another legal quick fix will suddenly flip Hispanics from Democrats to Republicans.

Last week Kansas Secretary of State Kris Kobach filed a lawsuit on behalf of 10 Immigration and Customs Enforcement agents challenging President Barack Obama’s “deferred action” program.

In a recent column I explained how the President’s decision to instruct federal law enforcement not to enforce relevant immigration law is giving some state governments an excuse to further legitimize illegal immigration.

Now the Heritage Foundation is out with an issue brief analyzing the prospects of the ICE agents’ lawsuit.  It doesn’t look good:

The plaintiffs will have a tough row to hoe, regardless of how abusive this new initiative may be in terms of violating the spirit—if not the letter—of the Constitution’s separation of powers, as well as the executive’s obligation to “take Care that the Laws be faithfully executed.” Although the challenge is by no means frivolous, a court may be reluctant to conclude that the plaintiffs have standing.

Even if they are able to establish an “injury in fact,” a court may be tempted to cite prudential standing rules in order to avoid reaching the merits, and to avoid encouraging federal officials to defy orders of their supervisors as a prelude to challenging the legality of those orders in court. As the Supreme Court stated in Gladstone, Realtors v. Village of Bellwood (1979), “a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.”

Key Takeaway: This is a political issue that requires a well thought out policy solution.  Paul Ryan dedicated his career thus far to making the conservative case for budget and entitlement reform.  It’s time for another enterprising Member of Congress to do the same with immigration reform.

Just days after the California DMV announced it might use the Obama Administration’s “deferred action” program to grant driver’s licenses to illegal immigrants, a group of Immigration and Customs Enforcement officers are suing to kill it.

From Huffington Post:

Arizona immigration law author and Kansas Secretary of State Kris Kobach is representing 10 immigration agents in a lawsuit filed Thursday against Homeland Security Secretary Janet Napolitano, for policies they say prevent them from doing their job of defending the Constitution.

“They’re being ordered by their federal-appointee superiors to break federal law, or if they don’t break federal law, according to their orders they will be disciplined,” Kobach said Thursday on a call with reporters. “This is an absolutely breath-taking assertion of authority and an abuse of authority.”

The complaint’s six causes of action give you a flavor of what Kobach means:

1. The Directive Expressly Violates Federal Statutes Requiring the Initiation of Removals
2. The Directive Violates Federal Law By Conferring a Non-Statutory Form of Benefit, Deferred Action, to More than 1.7 Million Aliens, Rather Than a Form of Relief or Benefit that Federal Law Permits on Such a Large Scale
3. The Directive Violates Federal Law by Conferring the Legal Benefit of Employment Authorization Without Any Statutory Basis and Under the False Pretense of “Prosecutorial Discretion”
4. The Directive Violates the Constitutional Allocation of Legislative Power to Congress
5. The Directive Violates the Article II, Section 3, Constitutional Obligation of the Executive to Take Care That the Laws Are Faithfully Executed
6. The Directive Violates the Administrative Procedure Act Through Conferral of a Benefit Without Regulatory Implementation

Fox News reports that thanks to President Barack Obama’s unilateral – and unconstitutional – implementation of the DREAM Act, nearly 2 million illegal immigrants will be coming out of the shadows and proudly telling government officials about their status:

Young illegal immigrants are lining up by the thousands at consulates across the country to take advantage of the Obama administration program allowing them to apply for a two-year reprieve from deportation.

As many as 1.8 million undocumented immigrants could be eligible for the program, which kicked off Wednesday. Under the new rules, applicants can fill out a six-page form, pay a $465 fee and submit documents proving their identity in order to qualify.

Immigration officials say the documents will be closely scrutinized, given the potential for fraud, but there is no uniform standard. Applicants are supposed to show they arrived in the U.S. before they were 16, and that they’re enrolled in school or vocational training, or have a high school degree.

The lines began forming on Tuesday, as illegal immigrants tried to get a leg up in seeking their passport applications.

…

The crowds Tuesday and Wednesday are the most visible demonstration to date of how many people are interested in applying for the administration’s new reprieve program — which is effectively a version of the DREAM Act, which failed to clear Congress.

You read that right.  The Obama Administration’s reprieve amnesty program is based on legislation that never became law.

I support reform of America’s immigration system, and I’m open to some of the elements of the DREAM Act; especially the way it ties military service to citizenship.

What I object to is the Obama Administration’s brazen and arguably illegal implementation of a law that Congress considered and failed to pass.  Acting as though the DREAM Act is law when it isn’t is, quite simply, lawless.

Buried in a Roll Call story on the political fallout from President Barack Obama’s decision to unilaterally impose DREAM Act-like amnesty for up to 800,000 illegal immigrants is the reaction by Rep. Steve King (R-IA):

“Americans should be outraged that President Obama is planning to usurp the Constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens,” King said in a statement. “There is no ambiguity in Congress about whether the DREAM Act’s amnesty program should be the law of the land. It has been rejected by Congress, and yet President Obama has decided that he will move forward with it anyway. President Obama, an ex constitutional law professor, whose favorite word is audacity, is prepared to violate the principles of Constitutional Law that he taught.”

King is right.  The DREAM Act – a proposal to exchange American citizenship for completing college or serving in the military – cannot pass Congress because “the American people have rejected amnesty because it will erode the Rule of Law.”

Contra the Obama administration’s apparent belief, conservative opposition to amnesty does not rest on intrinsic racism.  The problem with illegal immigration isn’t immigration.  It’s that it is illegal immigration.  That the president is choosing to implement a policy without a law to base it on drives home the point that liberals see laws as formalities that can be ignored.  Conservatives like King and yours truly see them as the guarantees of a free and orderly society.

Like so many other fundamental disagreements being argued this cycle, this issue needs a lot of attention.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

Somehow, with each passing day, Barack Obama appears less presidential while Mitt Romney appears more so.

Today provided perhaps the most stark illustration yet, as Obama publicly lost his temper and descended into argument with a reporter.  While announcing his unilateral decision to effectively impose “Dream Act” immunity to illegal immigrants via executive order, a reporter pressed Obama on whether he was favoring foreign citizens over American citizens when it came to jobs.  Scowling and angrily pointing his finger, Obama engaged in a back-and-forth hostile argument, interrupting himself multiple times to stutter, “Not while I’m speaking,” and “I didn’t ask for an argument, I’m answering your question.”

The spectacle can be seen here.

Perhaps Obama should simply stop speaking to the press on Fridays – recall last week’s “the private sector is doing fine” gaffe.

Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

After the public death of the omnibus spending bill and a retreat on opposition to tax cuts, why in the world won’t the Democrats running the U. S. Senate simply go home for the holidays?  It’s obvious that a majority of Americans are just plain tired of them, and want to move on.  Yet, here we are on the precipice of another bitter policy fight as Democratic Majority Leader Harry Reid (D-NV) readys two more contentious bills for floor votes.

The DREAM Act promises to give backdoor amnesty to tens of thousands of illegal immigrants in exchange for getting a college degree.  The other bill would repeal the military’s ‘don’t ask, don’t tell’ policy regarding homosexual service members.

Really?  With nearly double-digit unemployment and a trillion dollar budget deficit, these are the kinds of evergreen, polarizing issues the Senate needs to pass judgment on before it takes a three week vacation?

Forget the shenanigans.  The Senate should extend the continuing resolution to fund the government and get out of town.  We could all use a break.

H/T: The Daily Caller

Leave it to a Las Vegan to gamble on a high stakes vote with almost no pay-off.  Senate Majority Leader Harry Reid (D-NV) is reportedly going to schedule a “test vote” on the DREAM Act to see if he can cajole enough senators into supporting the legislative mechanism that swaps American citizenship for a college degree or military service.  Not a bad deal if you’re an illegal alien looking for a way to stay, right?

The cynical part about Reid’s stunt is that making senators take a record vote on the DREAM Act won’t pass it.  It’s a “test” vote because it only gauges the amount of support the bill might have if it gets to final passage.  However, if Reid gets close to the 60 votes needed to overcome a filibuster, he may think he’s passed the “test” and go for final passage.  Since (most) politicians are loathe to vote for something before voting against it, Reid may think he has enough “aye” votes to be close.

That, or he’s trying to convince Latino voters he did everything he could, but just fell short.  Either way, it’s desperate.