The United States Constitution (a great read for those in Washington who have not yet read it, I highly recommend it) mandates that the President of the United States “shall take care that the laws be faithfully executed.” Art. II, § 3, cl. 4. Of course, when it comes to many laws on the books, a faithful execution is open to varying interpretations. The Obama administration last Thursday took it to a new level by implementing a policy of selective deportation of illegal immigrants.
In a statement posted to the White House website by Cecilia Muñoz, the White House Director of Intergovernmental Affairs, the administration announced that the President had directed the Department of Homeland Security (DHS) to prioritize the removal of illegal immigrants who have committed crimes in our country. DHS will review, on a case-by-case basis, those who are slated for deportation. If you are part of the favored groups outlined in a June 2011 Immigration and Customs Enforcement (ICE) memo written by Director John Morton, then you have far less to worry about now than when you broke the law in entering this country illegally.
That bears repeating: illegally.
The administration seems to conveniently ignore that entering this country without permission is a crime. While prosecutors have always had the power to use their discretion in enforcing the laws based on a variety of factors, generally there are few executive-level policy pronouncements that grant amnesty to law-breakers as a matter of course. If you don’t like the law, then change it; some in Congress tried - but failed - to pass the “DREAM Act,” which would have enacted as law similar policy. Now the administration wants to change the law by fiat.
The Federation for American Immigration Reform described the new policy as “an amnesty program for millions of illegal aliens” that violates the separation of powers and clear mandate of Congress. After all, the law (8 U.S.C. §1325) states very clearly that illegal entry is…illegal. Furthermore, any alien who is in this country in violation of the law is deportable (8 U.S.C. §1227). There is nothing in the letter or spirit of these laws that grants the power to selectively decide who is and who is not worthy of deportation. If you are here without permission, you’ve not only broken the law at least once, you’re also to be deported.
Everyone agrees that the most dangerous criminals who are here illegally should be our first priority for deportation. But that does not make them the only priority. Surely we have the resources and ability to make sure the laws are equitably and fairly enforced. There should be discretion for prosecutors and judges to determine the appropriate remedy for a violation of a law, but no governmental policy should give blanket amnesty to people already caught violating the law. Prioritizing efforts in enforcement and resources is one thing. Using subjective criteria to favor certain people on whom resources have already been expended in investigation is entirely different.
Depending on how the administration actually implements this policy, it is certainly open to challenge as a violation of the Constitution and laws of the United States. WLF will continue to monitor developments as we seek to enforce this nation’s immigration laws, whether certain politicians and policy-makers like it or not.