Some of those ICE agents are currently suing the administration, arguing that the new policy “violates the obligation of the executive branch to faithfully execute the law,” which states that if immigration officers determine that an individual who has been arrested is in the country illegally, that individual “shall be detained” and processed for deportation. The Obama administration, however, is arguing that the word “shall,” in this instance, actually means “may.” DHS is simply exercising its “prosecutorial discretion,” the administration contends, with respect to immigration law enforcement.
Agents claim that the new policy is routinely abused: Illegal immigrants arrested on criminal charges will simply declare themselves eligible for “deferred action” protection, and agents are forced to release them without charge; they must take the detainees at their word, in accordance with new administration policy. Agents are threatened with disciplinary action if they object. One of the plaintiffs in the lawsuit was assaulted by an illegal immigrant in the course of arresting the immigrant on a domestic-violence charge. When the agent attempted to initiate deportation proceedings, ICE officials intervened and ordered the immigrant to be released without charge. The decision was “based on the President’s new immigration policies,” according to court documents.
The federal judge handling the case has already indicated that the ICE agents are likely to win; Obama’s policy could very well be struck down as unconstitutional. If that happens, it would seem to be a significant victory for Republicans. But the GOP has gone to almost no effort to publicize the case. Crane and other law-enforcement officials have been largely shut out of the immigration debate. (They claim the Gang of Eight’s border-security and enforcement provisions are too weak and give the administration too much discretion to ignore the law.) The White House has refused to meet with them. But apart from Senator Jeff Sessions (R., Ala.) and Representative Bob Goodlatte (R., Va.), chairman of the House Judiciary Committee, few Republicans have raised the issue, compared with the legions that have lined up to denounce the ongoing scandals at the IRS and the Department of Justice.
“There is a philosophical inconstancy between the Republican party’s handling of many of these recent scandals versus their handling of the ICE allegations,” says a GOP aide. “It’s an inconvenient scandal.”
— Andrew Stiles is a political reporter for National Review Online.