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Discretion, Not Amnesty



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All he said was, “Let’s be humane in enforcing the law.” That was my reaction last night when Newt Gingrich argued that the federal government should refrain from deporting illegal immigrants who had been in the U.S. for many years if the effect would be the break up of a family.

I did not take him to be proposing a new law conferring amnesty. To do what the former Speaker proposed would require no change in U.S. law. All you’d need is the sensible application of prosecutorial discretion.

A successful immigration enforcement policy, easily implemented under current law, would secure the borders; use the capability we have to track aliens who enter on visas to ensure that they don’t overstay; and target our finite law enforcement resources at (a) illegal immigrants who violate federal or state criminal laws (i.e., other than the laws against illegal entry), and (b) employers who knowingly hire illegal aliens and therefore provide the incentive that induces them to come. (An even better policy would deny illegal immigrants various social welfare benefits, but some of that would involve changes in the law so I put it to the side for present purposes.)

Such a policy would materially reduce the number of illegal immigrants in the U.S. — if they can’t work, many will leave and many won’t come in the first place. Such a policy would also call on government lawyers to exercise discretion (as they do in all aspects of law-enforcement) to decide which cases are worth prosecuting. Obviously, if an alien has been here illegally for a number of years but has been essentially law-abiding (again, ignoring the fact that it is illegal for him to reside and work in the U.S.), and if his deportation would have the effect of ripping apart an intact, law-abding family, you don’t bring that case. Such a case is not worth the Justice Department’s time when there are plenty of more serious criminals, including more serious immigration offenders, to pursue.

This is not a radical concept. The Obama administration currently exercises its discretion by not only refraining from any meaningful enforcement of the immigration laws but also preventing states (e.g., Arizona) from enforcing the laws. In stark contrast, the Speaker indicated that a Gingrich administration would enforce the law against illegal aliens — it would arrest and deport many of them. I’m betting that he’d also direct his Attorney General to drop the Obama Justice Department suit against Arizona. And Newt was quick to point out last night that he was talking about a humane enforcement policy. He was not proposing that the illegal aliens who were not prosecuted be given citizenship. They just wouldn’t get prosecuted as long as they didn’t make a nuisance of themselves.

That’s not amnesty. It’s common sense. It would also be a vast improvement over Obama immigration policy. I don’t understand what the hubbub is about.



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