It has all the familiar symptoms of an Obama scandal: executive overreach, a bullying bureaucracy, and a reckless disregard for the rule of law. But most Republicans aren’t interested. At least, not any more.
In June 2012, when President Obama announced that his administration was going to begin effectively implementing the DREAM Act — legislation that had failed to pass Congress on multiple occasions — Republicans were furious.
“This is another example of executive overreach,” said then-representative Allen West (R., Fla.), noting that the policy change should have been implemented through legislation, which is debated before it becomes law. “That’s how we do business in the United States,” he said. Representative Peter King (R., N.Y.) promised “an immediate review” of the policy and expressed concern that the administration was “scaling back our efforts to secure the border.” Representative Steve King (R., Iowa) said he was planning to sue the administration to block implementation of the policy, which allows illegal immigrants who meet certain requirements to receive “deferred action” status, avoid deportation, and ultimately apply for work permits. Even Obama supporters, such as former White House economic adviser Jared Bernstein, were skeptical. “I don’t totally get how the president can do this through executive order,” Bernstein said.
Senators Lindsey Graham (R., S.C.) and Marco Rubio (R., Fla.), both members of the so-called Gang of Eight and proponents of comprehensive immigration-reform legislation, also spoke critically of Obama’s decision. “President Obama’s attempt to go around Congress and the American people is at best unwise and possibly illegal,” Graham tweeted. Rubio said that by “once again ignoring the Constitution and going around Congress,” the president was making it more difficult to reach a “long term” agreement on immigration reform.
Since then, President Obama has been reelected and his Department of Homeland Security (DHS) secretary, Janet Napolitano, has continued to implement the new policy via a series of executive directives and memos. DHS has been approving applications for “deferred status” at an extraordinary clip; as of March 2013, the administration had approved more than 99 percent of all applications accepted for review. Republicans, perhaps still reeling from their election defeat, and mulling a “new direction” for the party (especially when it comes to immigration policy), have been largely silent.
The federal agents charged with enforcing our immigration law, meanwhile, have charged that the administration is preventing them from doing their jobs. Chris Crane, who heads the union representing more than 7,000 U.S. Immigration and Customs Enforcement (ICE) employees, told National Review Online that the Obama administration “rules with an iron fist.” His agents are “beat down and scared,” and suffer from low morale. According to a 2012 survey of federal agencies, ICE ranked 279th out of 291 agencies in terms of employee morale and job satisfaction.
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.