Following the electoral thumping the pro-amnesty Democrats received on Tuesday, President Obama told a White House news conference that he would nevertheless forge ahead and “get stuff done” on his plans for unilateral action on immigration.
His supposed executive authority to bypass congressionally enacted immigration law was front and center at this year’s Immigration Law and Policy Conference, a pro-open-borders confab held October 21 at Georgetown Law School. The task of laying out the legal case for Obama’s forthcoming amnesty was performed by Marc Rosenblum, senior analyst at the pro-amnesty Migration Policy Institute. Rosenblum is Obama’s former immigration-policy adviser, and he helped frame the 2007 McCain–Kennedy amnesty bill. To conference attendees (mostly law students), Rosenblum attempted to justify the amnesty by pointing out five previous “Executive Actions on Immigration” going back to the 1960s, each of which gave some degree of discretion to federal agencies in the management of deportations. To people who actually know immigration law, however, Rosenblum’s PowerPoint presentation was close to fraudulent.
What he left out was the fact that of the five executive actions he chose to discuss, four were illegitimate power grabs by federal agencies and were later restricted or completely killed by Congress, and the other wasn’t even an executive program at all, but one implemented by Congress. Rosenblum’s list actually turns out to be very useful for closed-borders advocates, as it shows a historical pattern of Congress pushing back against programs created out of thin air by the executive.
Rosenblum first noted that the executive has in the past exercised so-called “parole authority” as a sort of mass refugee program for whole groups of illegals, as it did after Castro’s takeover of Cuba in 1959, when the Immigration and Naturalization Service granted thousands of Cubans illegally residing in the U.S. permission to stay. But, as was pointed out in a recent court filing by the Immigration Reform Law Institute, the INS’s use of group parole was in violation of the Immigration and Naturalization Act, which grants parole only in isolated, case-by-case situations. In the words of the Court of Appeals for the second circuit, Congress clamped down on the practice in 1980 with the Refugee Act and again in 1996 with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) because of a “concern that parole . . . was being used by the executive to circumvent congressionally established immigration policy.”
Other programs described by Rosenblum as justifying Obama’s amnesty have followed a similar pattern. The Temporary Protected Status (TPS) program, started in 1990, is basically a temporary refugee program that can be applied to certain national groups when their country of origin is ravaged by war or suffers a natural disaster. But TPS was implemented by Congress, not the executive. In fact, Congress passed the TPS law in order to restrain the executive, which had for years done on its own roughly the same thing TPS would do, through a program called Extended Voluntary Departure, which Rosenblum also covered. Congress reacted by creating an “exclusive remedy” in the area of deportation relief based on nationality, which was intended to tether by statute the executive’s potentially boundless application of deportation relief.
Another program Rosenblum cites, Deferred Enforced Departure, merely sought to revive what the executive had been doing before TPS. The courts have described this program as essentially the same as TPS, although in 2011 Obama extended deportation relief under DED to a group of Liberians living illegally in the United States.
Rosenblum’s final justification for Obama’s unilateral amnesty is Deferred Action. This program was an attempt by the executive to delegate to itself the authority to grant relief based on humanitarian reasons or reasons of convenience. Congress took back this authority with the 1996 passage of IIRIRA, and, although the Department of Homeland Security admitted in 1997 that the statute expunged Deferred Action, Obama cited Deferred Action as an authority in 2012 when he unilaterally implemented the Deferred Action for Childhood Arrivals program, which has twice been held unconstitutional in federal court and which was based on a bill (the DREAM Act) that was rejected 24 times by Congress.
Executive action for group deportation relief has always been followed by Congress’s either rolling it back or regulating it on Congress’s own terms. With the GOP’s new mandate following the thumping of open-borders Democrats, the tension between Congress and the executive is now higher than it has ever been.
— Ian Smith is an attorney in Washington, D.C.
EDITOR’S NOTE: This article has been amended since its initial posting.