It was a fairly straightforward question, but Senator John Hoeven (R., N.D.), co-author of the Corker-Hoeven “border surge” amendment, didn’t have much of an answer.
What happens, asked radio host Hugh Hewitt, if Homeland Security Secretary Janet Napolitano fails to follow the precise instructions of the bill on border security? “What’s the penalty?” Hewitt asked.
“They’d be breaking the law,” Hoeven said.
“But what’s the penalty?” Hewitt persisted.
“I mean, that would be saying, any law we passed, what if they don’t bother to enforce it,” Hoeven replied.
As much as one would like to think Napolitano would be quaking in her boots at the prospect of breaking the law, the evidence suggests otherwise. The Obama administration has shown no fear of breaking the law when it comes to the enacting the DREAM Act via executive order and postponing Obamacare’s employer mandate without authorization from Congress, for instance.
But fortunately, there are other legal tools that can be used to help ensure compliance by federal agencies. Specifically, immigration hawks should be paying close attention to the citizen-enforcement-suit provisions in the nation’s environmental laws, which environmentalists have used with phenomenal success over the past 40-plus years.
Here’s how it works. Normally, to bring a lawsuit, one needs to have “standing,” meaning that one has been harmed by the defendant in a specific and palpable way. But laws such as the Clean Water Act, the Endangered Species Act, and the Clean Air Act afford every individual citizen the standing to sue. The theory is that the impact of pollution is so widely dispersed that that everyone is harmed when environmental laws are broken. Citizen suits can be brought against a specific factory that is polluting, or against the Environmental Protection Agency for general inaction over a class of activity or type of facility.
At my first job in journalism as a reporter was for Inside EPA, a newsletter on environmental regulations, I was amazed to find that legal battles still raging over what the Clean Water Act and other laws require. For example, six years before President Obama delivered his recent climate-change speech, the Court’s 5–4 decision in Massachusetts v. EPA, a suit filed by twelve states, in effect compelled the EPA to begin regulating greenhouse gases under the Clean Air Act, leading to the regulations that are just now being issued. The core of the air act was passed in the 1970s, the decade of Newsweek’s infamous “Global Cooling” article, and needless to say such controls were never envisioned back then.
Whatever you think about those laws and the way courts have interpreted them, citizen suits have been a highly effective tool to spur action from the EPA. It would be easy to apply the same concept in the realm of immigration. The Clean Water Act, for example, stipulates that “any citizen may commence a civil action on his own behalf” to enforce most of the law’s provisions. Similar language could be added to an immigration bill allowing anyone to bring suit to ensure its enforcement provisions were being implemented.
“I think it would be a very powerful tool that isn’t in the law now precisely because it would be so powerful,” says Mark Krikorian, president of the Center for Immigration Studies and a leading immigration hawk.
For the border fence, “it could work like critical habitat in the Endangered Species Act. If the fence was not built, any citizen would have the authority to bring suit to compel that it be constructed,” says Hewitt, who, besides running his radio show, continues to practice law in California, with environmental law as his specialty.
Citizen suits could work well to enforce other elements of Corker-Hoeven as well, such as the hiring of 20,000 Border Patrol agents and the purchasing of drones and helicopters. Allowing suits over the completion of an E-Verify system would be more difficult, since that benchmark is less specifically defined, but it would still be feasible.
In practice, even federal agencies that ignore deadlines aren’t willing to flout a court order. And courts have various ways to help force compliance. For example, in environmental law, courts have the power to award plaintiffs attorney’s fees if they win their cases against the government. This creates an extra incentive for bureaucrats to act, since any payments come from their budgets.
This power also has given environmentalists a revenue stream from which to launch more lawsuits. While there are fewer groups with the wherewithal to use this strategy in the conservative immigration movement than there are in the liberal environmentalist movement, Krikorian says he thinks the resources exist to keep DHS’s feet to the fire in court.
The idea of applying citizen suits to immigration enforcement hasn’t often been discussed in recent decades, in part because Republicans, who would sponsor such provisions, are generally leery of encouraging more lawsuits in an already overlawyered country.
However, there is an important distinction between environmental citizen suits and those that would be allowed in an immigration bill. The most controversial aspect of environmental citizen suits is that they can be filed against private businesses and other organizations that are allegedly violating the law. But since only governments would be implementing immigration enforcement, only governments could be sued. It’s also difficult to imagine immigration suits multiplying out of control, since cultural and legal elites would tend to side with governments as opposed to the suing activist groups.
Whether or not citizen suits are the answer, those concerned about enforcement should be looking at innovative legal approaches that would actually give teeth to an immigration bill instead of relying on Napolitano’s being afraid to break the law.
As Hewitt puts it, “If we ever learn how to follow how the Left does things, then we become much more effective.”
— Jonathan Strong is a political reporter at NRO. Follow him on Twitter @j_strong.