The Immigration Power-Grab
The Gang of Eight have fallen back on “unreviewable discretion.”

Senators John McCain and Chuck Schumer discuss the immigration-reform bill.


Andrew Stiles

Just as the 2,700-page health-care-reform law granted enormous discretionary authority to Health and Human Services Secretary Kathleen Sebelius — which has resulted in more than 20,000 pages worth of subsequent rules and guidelines for implementation — the Gang of Eight’s comprehensive immigration-reform bill would do the same for Homeland Security (DHS) Secretary Janet Napolitano and her successors.

The 844-page bill contains 129 instances of what the DHS secretary “shall” do to implement its myriad provisions, 102 mentions of what she “may” do, and 35 cases in which implementation will be based on what the secretary “determines.” On five occasions, the bill affirms the DHS secretary’s “unreviewable discretion” to waive or alter certain provisions as she sees fit.


In many cases, Napolitano would be able to decide how strictly to enforce many of the bill’s major provisions, which some conservatives charge could result in millions of additional immigrants’ being eligible for legal status. After all, she is the same DHS secretary who said border security was “better now than it ever has been.” And given the Obama administration’s apparent reluctance to enforce current immigration law, critics fear that many of the bill’s enforcement measures are likely to be (at the secretary’s discretion) watered down, if not ignored entirely.

For example, the bill would allow the DHS secretary to waive certain eligibility requirements for illegal immigrants seeking provisionary legal status. The bill states that illegal immigrants who have been convicted of three or more misdemeanor offenses on three separate dates (not including minor traffic violations) are ineligible for provisionary status. However, the secretary “may waive” that requirement based on a fairly broad set of criteria; she may do so for “humanitarian purposes,” to “ensure family unity,” or if she determines that such a waiver “is otherwise in the public interest.”

Immigrants who engage in fraud or misrepresentation to claim benefits under the proposed law would be deemed inadmissible to the United States — unless the secretary decides otherwise. The DHS secretary, or the attorney general, can waive the restriction if either determines that rejecting admission “would result in extreme hardship” for the immigrant or a member of the immigrant’s immediate family (who is a lawful resident). The bill further states that “no court shall have jurisdiction to review a decision or action” regarding the granting of these waivers. The “extreme hardship” finding can also be used to waive some of the employment and education requirements for immigrants seeking permanent legal status. 

The bill says that illegal immigrants who have been previously deported are ineligible to apply for legal status, but the secretary can override that provision as well. The bill grants her “sole and unreviewable discretion” to grant a waiver for immigrants who meet certain requirements, including if they are the spouse, child, or parent of a U.S. citizen or lawful resident. Additionally, illegal immigrants apprehended after the law goes into effect would not enter deportation proceedings. Instead, the secretary “shall provide the alien with a reasonable opportunity to file an application” for provisionary legal status, provided the immigrant “appears prima facie eligible, to the satisfaction of the Secretary.” This particular section of the bill emphasizes that it is not designed to “require the Secretary to commence removal proceedings” against any illegal immigrant.