Practical Thoughts on Immigration

Practical Thoughts on Immigration

by Heather Mac Donal/Manhattan Institute

HEATHER Mac DONALD is the Thomas W. Smith Fellow at the Manhattan Institute and a contributing editor of City Journal. She received her B.A. from Yale University, and earned an M.A. in English from Cambridge University and a J.D. from Stanford Law School. She writes for several newspapers and journals, including The Wall Street Journal, The New York Times, The New Criterion, and Public Interest, and is the author of three books, including—with Victor Davis Hanson and Steven Malanga—The Immigration Solution: A Better Plan Than Today’s.

The following is adapted from a speech delivered on February 18, 2015, at a Hillsdale College National Leadership Seminar in Naples, Florida.

The lesson from the last 20 years of immigration policy is that lawlessness breeds more lawlessness. Once a people or a government decides to normalize one form of lawbreaking, other forms of lawlessness will follow until finally the rule of law itself is in profound jeopardy. Today, we have a constitutional crisis on our hands. President Obama has decided that because Congress has not granted amnesty to millions of illegal aliens living in the U.S., he will do so himself. Let us ponder for a moment just how shameless this assertion of power is.

Article 2, Section 3, of the Constitution mandates that the president “shall take Care that the Laws be faithfully executed.” This provision assumes that there is a law for the president to execute. But in this case, the “problem” that Obama is purporting to fix is the absence of a law granting amnesty to millions of illegal aliens. Rather than executing a law, Obama is making one up—arrogating to himself a function that the Constitution explicitly allocates to Congress. Should this unconstitutional power grab stand, we will have moved very far in the direction of rule by dictator. Pace Obama, the absence of a congressional law granting amnesty is not evidence of political failure that must somehow be corrected by unilateral executive action; it is evidence of the lack of popular consensus regarding amnesty. There has been no amnesty statute to date because the political will for such an amnesty is lacking.

On February 16, U.S. District Judge Andrew Hanen halted President Obama’s illegal amnesty with a temporary injunction. The proposed amnesty program, Judge Hanen found, went far beyond mere prosecutorial discretion not to enforce the law against individuals. Instead, the Department of Homeland Security proposed to confer on illegal aliens a new legal status known as “legal presence.” But Congress has not granted DHS the power to create and bestow legal status. The amnesty program represented a “complete abdication” of DHS’s responsibility to enforce the law, Judge Hanen declared. Indeed, DHS was actively thwarting the express will of Congress.

Pursuant to traditional canons of judicial interpretation, Judge Hanen ruled against the Obama administration on the narrowest possible grounds in order to avoid reaching the constitutional question. He based his decision on the law governing agency rulemaking, rather than on separation of powers grounds. But his rebuke was just as scathing.

The administration will likely fight the ruling through the Fifth Circuit Court of Appeals and, if necessary, all the way to the Supreme Court. Democrats should hope that the administration loses. They are assiduously pretending that Obama’s executive amnesty is merely an innocuous exercise of prosecutorial discretion. But if Obama’s power grab is upheld, they will rue the day that they acceded to this travesty when a Republican president decides, say, to privatize Social Security because Congress has failed to do so.

Obama’s executive amnesty is the most public and egregious example of immigration lawlessness to date. But beneath the radar screen has been an equally telling saga of cascading lawlessness that is arguably as consequential: an ongoing attack on the Secure Communities program and on deportation more generally. Because of this attack, the rallying cry of so many conservatives that we must “secure the borders” is a naïve and meaningless delusion.

The Secure Communities program is a commonsensical response to illegal alien criminality. Whenever an illegal alien is booked into a local jail on suspicion of a crime, an alert is automatically sent to federal authorities in the Immigration and Customs Enforcement (ICE) agency. ICE agents can then ask that the jail or prison briefly hold the illegal alien after he has served his time rather than releasing him, so that ICE can pick him up and start deportation proceedings. This is known as a detainer.

You would think that such a program would be wholly uncontroversial. An alien who crosses into our country illegally already has no claim to undisturbed presence here. He has voluntarily assumed the risk of deportation. But an illegal alien who goes on to break other laws has even less claim to protection from deportation. Yet Secure Communities has been the target of incessant protest from illegal alien advocates since its inception. Those advocates make the astonishing claim that it is unfair to remove an illegal alien who commits other crimes.

Even more astonishing, nearly 300 jurisdictions agree, including New York State, California, New York City, Chicago, and Los Angeles. They have openly refused to honor ICE’s requests for detainers, but instead have released tens of thousands of criminals back on to the streets where they easily evade detection. Not that ICE would be likely to try to pick them up! Indeed, the irony regarding the agitation against Secure Communities is that ICE rarely uses its power under the program. In 2012—the last year for which we have complete figures—the agency was notified of over 400,000 illegal jail detainees, but removed only 19 percent of them. And about 50 percent of the criminal illegal aliens whom ICE chooses not to deport reoffend upon release.

There are two aspects of the campaign against Secure Communities that bear particular notice: the hypocrisy of the Obama administration and the campaign’s advocates, and the hypocrisy of big city police chiefs.

In 2012, Arizona became the target of universal contempt among the country’s elites for passing a law that encouraged local law enforcement officers to assist ICE with immigration enforcement. According to illegal alien advocates and the Obama administration, this law, known as SB 1070, was an unconstitutional state usurpation of the federal government’s plenary power over immigration matters. The Obama administration sued Arizona for allegedly interfering with federal authority over immigration and won an injunction against SB 1070. Yet now these same advocates are urging states and localities to defy the federal government’s requests for immigration assistance, resulting in the creation of local sanctuary zones where federal immigration authority cannot reach.

If ever there were a lawless usurpation of the federal government’s power over immigration, the open revolt against Secure Communities is it. Yet the Obama administration, rather than hauling these recalcitrant jurisdictions to court, has lain supine and chastely looked the other way. And late last year, it threw in the towel completely. It dismantled the Secure Communities program except in a few narrow instances, agreeing with the activists that it was unfair to worry illegal alien criminals about deportation.

“Reprinted by permission from Imprimis, a publication of Hillsdale College.”