Indiscrete Discretion

by Mark Krikorian
Obama proxies suggest there’s ample precedent for his planned massive executive amnesty. There isn’t.

Today is the two-year anniversary of President Obama’s first big amnesty edict, Deferred Action for Childhood Arrivals (DACA). So far more than half a million illegal immigrants claiming to have arrived here before age 16 have been legalized by the president’s unilateral riff on the Dream Act.

Contrary to the story line put forth by activists, and repeated uncritically by most of the media, the DACA decree was not a matter of simply delaying deportations of illegal aliens judged to be low-priority — the administration did that early on by formally exempting the vast majority of the illegal population from the workings of immigration law through a series of internal memos. Those directives, called the Morton Memos, after the then-director of Immigration and Customs Enforcement, represent a nullification of existing immigration law, but not an affirmative grant of status.

DACA, on the other hand, confers work permits, Social Security numbers, driver’s licenses, documents allowing foreign travel, eligibility for the Earned Income Tax Credit and affirmative-action preferences, and more. It’s an actual amnesty, “green-card lite,” if you will. (Even Obama’s most slavish acolytes don’t claim he can confer green-card premium.)

Nor is there anything genuinely temporary about it; the limited period merely requires a pro forma renewal every two years, something that is already underway. Despite the recent House vote to defund expansion of DACA (including renewals), DACA has created facts on the ground, and beneficiaries will never be illegal aliens again — bank on it.

For some weeks now, the White House has been leaking that it plans to use this same end run around the Constitution, but this time to amnesty millions, all of whom came as adults and knew perfectly well what they were doing. The response to such a subversion of the constitutional order was swift: warnings of caesarism, “a leap into the antidemocratic dark” through an act that “has basically nothing to do with our system of government.” Even independent liberals are warning of the dangerous precedent an amnesty decree would set, not to mention the electoral disaster Democrats would reap in November.

The administration’s allies have responded by arguing that there are numerous precedents for such an action, pointing to previous examples of deferred action or its functional equivalents. The administration’s semi-official media organs have been trumpeting these arguments, so it’s worth looking at how the White House plans are radically different from anything that’s gone before.

A number of Alice in Wonderland euphemisms for such executive amnesties have been concocted over the years, including Deferred Action, Extended Voluntary Departure, Deferred Enforced Departure, and Parole in Place. What they have in common is that they were made up out of whole cloth by the executive as ways of letting illegal aliens stay. I discuss some of them here, and the Congressional Research Service has a list in the appendix to this memo.

When you look over the lists of these past executive amnesties, the first thing you notice is that they overlap with foreign crises, presidents having relied on their authority over foreign affairs to “temporarily” legalize illegals here when something hit the fan in their countries of origin. Cuba 1960, the Dominican Republic 1966, Czechoslovakia 1968, Chile 1971, Southeast Asia 1975, Lebanon 1976, Ethiopia 1977, Uganda 1978, Iran 1979, Afghanistan 1980, Poland 1982, Nicaragua 1987, China 1989 — the list reads like a study guide of post-war foreign crises.

Regardless of the president’s authority in foreign affairs, such actions impinged on Congress’s plenary power over immigration policy. Congress grew uncomfortable with the executive’s unilateral ad-hocism, so in 1990 it created something called “Temporary Protected Status” (TPS), in an effort to regularize and subject to statutory control the executive’s exercise of unilateral amnesty.

TPS is itself a fraud perpetrated against the public (no one with such “temporary” protection in the U.S. has ever been made to leave — ever). The Liberians are perhaps the most egregious example. First given TPS in 1991 following the outbreak of civil war, they’re still here, having had their “temporary” status routinely renewed, and when it was no longer plausible to renew it (the wars there having ended in 2003), they were simply granted the old Deferred Enforced Departure ad hoc status and remain here still.

But as fraudulent as TPS may be, it’s a statutory tool created by Congress in an attempt to preserve the flexibility needed by the executive but to strictly control it. Grants of TPS require Federal Register notices and formal estimates of the number likely to benefit, and may not last longer than 18 months (though they may be renewed). What’s more, the statute narrowly defines when TPS may be used to amnesty illegal aliens, rendering it pretty much useless for Obama’s mass-amnesty purposes. It can be applied only if the illegals’ home country is experiencing “ongoing armed conflict,” “earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions,” or “extraordinary and temporary conditions . . . that prevent aliens who are nationals of the state from returning to the state in safety.”

In other words, Congress acted in 1990 to prevent unilateral, extra-legal grants of amnesty by the executive. Pointing to those previous actions as precedents is to willfully miss the point.

Be that as it may, another radical departure from past practice is the scale of Obama’s proposed amnesty edict. Even DACA, with its 500,000-plus beneficiaries, is larger than any prior attempt at executive amnesty. (The one exception that advocates point to is the “Family Fairness” edict for spouses and children of people who got amnesty in 1986; the INS commissioner in 1990 estimated that it might apply to as many as 1.5 million illegal aliens, but only about 60,000 received it.)

Scale matters, and at some point quantitative change becomes qualitative. The legal fiction of Deferred Enforced Departure for Liberian illegals who have lived here for more than two decades is bad, but it covers only some 10,000 people. The governing order of a vast continental nation can abide a few absurdities like that in its interstices without suffering any lasting harm.

But when a president proposes to issue a ukase amnestying millions of illegal aliens — reportedly between a third and a half of the entire illegal population — without permission from Congress, it does indeed represent a leap into the antidemocratic dark.

Daniel Costa at the Economic Policy Institute, in a piece defending the president’s unilateral amnesty power, asks, “At what point does deferred action go from being prosecutorial discretion to simply not enforcing the law? The line exists somewhere, but I don’t think the president is considering crossing it.” It’s encouraging that he at least acknowledges the possibility of executive overreach, but I think he misses the point. Obama graduated from “simply not enforcing the law” two years ago with his DACA decree. The proposed expansion of DACA to amnesty perhaps ten times as many illegal aliens would represent a decisive change in our political system, preserving the forms of representative government but dispensing with its substance.

Augustus, who died 2,000 years ago next week, would approve.

— Mark Krikorian is executive director of the Center for Immigration Studies.