Politics & Policy

The Immigration Power-Grab

The Gang of Eight have fallen back on “unreviewable discretion.”

Just as the 2,700-page health-care-reform law granted enormous discretionary authority to Health and Human Services Secretary Kathleen Sebelius — which has resulted in more than 20,000 pages worth of subsequent rules and guidelines for implementation — the Gang of Eight’s comprehensive immigration-reform bill would do the same for Homeland Security (DHS) Secretary Janet Napolitano and her successors.

The 844-page bill contains 129 instances of what the DHS secretary “shall” do to implement its myriad provisions, 102 mentions of what she “may” do, and 35 cases in which implementation will be based on what the secretary “determines.” On five occasions, the bill affirms the DHS secretary’s “unreviewable discretion” to waive or alter certain provisions as she sees fit.

In many cases, Napolitano would be able to decide how strictly to enforce many of the bill’s major provisions, which some conservatives charge could result in millions of additional immigrants’ being eligible for legal status. After all, she is the same DHS secretary who said border security was “better now than it ever has been.” And given the Obama administration’s apparent reluctance to enforce current immigration law, critics fear that many of the bill’s enforcement measures are likely to be (at the secretary’s discretion) watered down, if not ignored entirely.

For example, the bill would allow the DHS secretary to waive certain eligibility requirements for illegal immigrants seeking provisionary legal status. The bill states that illegal immigrants who have been convicted of three or more misdemeanor offenses on three separate dates (not including minor traffic violations) are ineligible for provisionary status. However, the secretary “may waive” that requirement based on a fairly broad set of criteria; she may do so for “humanitarian purposes,” to “ensure family unity,” or if she determines that such a waiver “is otherwise in the public interest.”

Immigrants who engage in fraud or misrepresentation to claim benefits under the proposed law would be deemed inadmissible to the United States — unless the secretary decides otherwise. The DHS secretary, or the attorney general, can waive the restriction if either determines that rejecting admission “would result in extreme hardship” for the immigrant or a member of the immigrant’s immediate family (who is a lawful resident). The bill further states that “no court shall have jurisdiction to review a decision or action” regarding the granting of these waivers. The “extreme hardship” finding can also be used to waive some of the employment and education requirements for immigrants seeking permanent legal status. 

The bill says that illegal immigrants who have been previously deported are ineligible to apply for legal status, but the secretary can override that provision as well. The bill grants her “sole and unreviewable discretion” to grant a waiver for immigrants who meet certain requirements, including if they are the spouse, child, or parent of a U.S. citizen or lawful resident. Additionally, illegal immigrants apprehended after the law goes into effect would not enter deportation proceedings. Instead, the secretary “shall provide the alien with a reasonable opportunity to file an application” for provisionary legal status, provided the immigrant “appears prima facie eligible, to the satisfaction of the Secretary.” This particular section of the bill emphasizes that it is not designed to “require the Secretary to commence removal proceedings” against any illegal immigrant.

When it comes to “DREAM eligible” individuals — younger immigrants brought to the country illegally who are currently enrolled in college or the military, and are granted fast-track status under the proposed law — the secretary “may adjust” their status to that of a “lawful permanent resident,” even if the applicant has not satisfied all of the higher-education or military-service requirements. The secretary can waive them if she believes the immigrant has shown “compelling circumstances” for his or her failure to satisfy the requirements.

The DHS secretary is given broad authority over the entire process by which illegal immigrants may apply for provisionary legal status. Applicants will have to establish their identity based on criteria “the Secretary determines to be appropriate.” She can also establish “alternative procedures” for individuals who can’t fulfill the initial requirements. The secretary can “limit the maximum processing fee” payable by a family of immigrants, and may “exempt defined classes of individuals” from payment altogether. If she deems the one-year application period to be insufficient, or has “other good cause” for doing so, she may extend it for an additional 18 months. 

To carry out the proposed law’s implementation, the DHS secretary would be able to hire an unlimited number of temporary employees. The secretary “is authorized” to hire temporary and part-time employees “without regard to the number of such employees, their ratio to permanent full-time employees, and the duration of their employment,” the bill states.

Additionally, the bill would provide up to $50 million in grant funding for nonprofit organizations to inform the public about the law, assist eligible applicants, and provide any other services “the Secretary or grantees consider useful or necessary to apply for registered provisional immigrant status.” The secretary is further authorized to establish a 501(c)(3) nonprofit corporation to be known as the “United States Citizenship Foundation,” which would coordinate with DHS, and be allowed to “solicit, accept, and make gifts of money,” like any other such organization. 

There are dozens, if not hundreds, of additional powers that Secretary Napolitano would assume if the bill becomes law. That, in and of itself, is enough to be skeptical of the law, critics claim. Because as Republicans know all too well when it comes to major legislation: Once it’s passed, you might not like what’s in it.

— Andrew Stiles is a political reporter for National Review Online.

Andrew StilesAndrew Stiles is a political reporter for National Review Online. He previously worked at the Washington Free Beacon, and was an intern at The Hill newspaper. Stiles is a 2009 ...


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