The Senate voted Tuesday to initiate debate on the Gang of Eight immigration bill. The process could take weeks, but supporters such as Senator Chuck Schumer (D., N.Y.) are predicting passage by July 4. In that time, a federal judge in Texas is expected to rule on a case that, although largely ignored by lawmakers, could have significant implications for the immigration-reform debate.
As I have previously written (here and here), a group of Immigration and Customs Enforcement (ICE) agents is suing the Obama administration over its deportation policy. In June 2012, the Department of Homeland Security (DHS) announced that it would stop deporting illegal immigrants who meet certain requirements: individuals who were brought here illegally as children, who are currently enrolled in school or are members of the military, and who have not been convicted of a serious crime. The policy mirrors the language of the DREAM Act, legislation that has failed to pass Congress on multiple occasions. But the Obama administration is behaving as if it did pass.
The ICE agents argue that the policy “violates the obligation of the executive branch to faithfully execute the law,” and that it is systematically abused by illegal immigrants in order to avoid criminal charges — even charges not related to immigration. As long as illegal immigrants claim protection under “Obama’s DREAM Act,” law-enforcement officers have been ordered to release them without charge. One of the plaintiffs in the lawsuit was threatened with disciplinary action after refusing to release an illegal immigrant who had assaulted him in the course of resisting arrest on a domestic-violence charge. ICE management said the decision was “based on the President’s new immigration policies,” according to court documents.
U.S. District Judge Reed O’Connor has already indicated that the ICE agents “are likely to succeed on the merits of their claim.” If that proves true, it would mean that the agents’ request for a temporary injunction would be granted, and the policy ultimately struck down, barring a successful appeal. Judge O’Connor’s ruling is likely come in the next week or two, as the Senate debates and considers amendments to the immigration-reform bill. “It could definitely affect things in Congress,” says Kris Kobach, the attorney representing the ICE agents in the case (and a contributor to National Review). “If Congress doesn’t take notice of what’s going on in this case, and the shocking facts that have been revealed, then Congress is not looking at the full picture.”
Kobach, who opposes the Gang of Eight bill, says such a ruling would significantly undermine proponents’ claims with respect to border security and law enforcement. “All we really have on the law-enforcement side, with the bill in the Senate, is the Obama administration’s promise to enforce the law,” Kobach says. “Well, they’ve already shattered that promise, as demonstrated by this case. They’re ordering ICE agents to break the law, which is pretty extraordinary. They’re not engaging in any serious law enforcement.”
Last week, House Republicans voted to deny funding to implement the policy in question. Obama referred to the vote in a speech Tuesday in which he called on Congress to pass the Gang of Eight bill. “There’s no good reason to undo the progress we’ve already made — especially when it comes to extreme steps like stripping protections from DREAMers that my administration has provided, or asking law enforcement to treat them the same way they treat violent criminals,” he said. “That’s not who we are.”
It is a telling statement from a president whose administration has demonstrated a casual disregard for the rule of law. Even if the DREAM Act is good policy — and even a number of Republicans think it is — certainly the fact that the president lacks the legal authority to implement it by executive fiat is a “good reason” to stop him from doing so.
Many immigration-law-enforcement officers across the country oppose the Gang of Eight proposal; nonetheless, even most Republicans have expressed little interest in the ICE agents’ lawsuit. Given this tangle, it remains to be seen how lawmakers will respond if Judge O’Connor strikes down Obama’s policy. Gang-of-Eight proponents may simply shrug and spin the ruling as “further evidence we need to fix our broken immigration system” by passing a reform bill the administration likes. Maybe then Obama will have a good reason to actually enforce the law.
— Andrew Stiles is a political reporter for National Review Online.