A Legal Precedent for Executive Amnesty?

A Georgetown Law confab makes the case for the president.

2329886714_0bfdbfbe73C-SPAN recently aired footage of the 11th annual Immigration Law and Policy Conference held every year at the Georgetown University Law Center just off Capitol Hill. The confab’s always a "who’s who" of the open-borders, anti-sovereignty movement, from the immigration lawyers lobby to Hispanic chauvinist groups, and past keynote speakers have included such border insecurity-stalwarts as Chuck Schumer and John McCain.

This year’s big panel was on the “legal precedents” supporting President Obama’s forthcoming amnesty, led by Marc Rosenblum of the Migration Policy Institute, a pro-open borders, Carnegie-funded outfit. Rosenblum helped craft the 2007 McCain-Kennedy amnesty bill and he’s advised Obama on immigration policy in the past. In other forums, he’s also described America as a “nation of nations,” presumably because he thinks the country should no longer be an actual nation unified by language, culture and history.

Norm Ornstein, resident leftist at the American Enterprise Institute and Rosenblum’s fellow panelist, was more open about his views on transforming America. When speaking about the GOP’s voter base (“old white men”), Ornstein informed the audience that “older white men are a group you cannot trust.” Although this is normal discourse for the contemporary Left, it should still be a red alert for those who resist balkanizing the nation – watch the video from 01:06:30; send your complaints to Georgetown University, AEI, and the SPLC.

Rosenblum’s pro-amnesty presentation was essentially a lecture to attendees (majority law students) on why we should ignore the immigration laws on our books should. He proceeded to “justify” Obama’s forthcoming amnesty by pointing out five previous “executive actions on immigration” going back to the 1960s, which gave some degree of discretion to federal agencies in the management of deportations. To people who actually know immigration law, however, Rosenblum’s presentation was close to fraudulent.

Left out of his powerpoint was that of the five executive actions picked, four were illegitimate power-grabs by federal agencies which were later restricted or completely culled by Congress and the other wasn’t even an executive program at all, but one implemented by Congress. Each are addressed below. Rosenblum’s list actually turns out to be very useful for pro-borders advocates, as it shows a historical pattern of Congress pushing back against programs created out of thin air by the executive.

As Rosenblum first notes, the executive has in the past exercised so-called “parole authority” as a sort of mass refugee program for whole groups of illegals, like after Castro’s takeover of Cuba in 1960 when thousands of Cubans illegally residing in the US were granted permission to stay. But as was recalled in a recent court filing by the Immigration Reform Law Institute, the INS’s use of group parole had been 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 therefore 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) due to a “concern that parole ... was being used by the executive to circumvent congressionally established immigration policy.”

Other programs justifying amnesty described by Rosenblum have followed a similar pattern. The still-current “Temporary Protected Status” (TPS) program, started in 1990, is basically a temporary refugee program that can apply to certain national groups when their country of origin becomes ravaged by war or suffers a natural disaster. But TPS was implemented by Congress, not the executive. In fact, Congress passed TPS in order to restrain the executive which had for years practiced a similar program on its own (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 uses, “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 Obama extended deportation relief under the program to a group of Liberians living illegally in the US in 2011.

Finally, there’s “deferred action,” Rosenblum’s final justification for Obama’s unilateral amnesty. 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 once again took back this authority with the 1996 passage of IIRIRA, and although DHS admitted in 2000 that the statute expunged deferred action, Obama cited it 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 in Congress.

Executive discretion for group-deportation relief has always been followed by Congress either rolling it back or regulating it under legislation according to Congress’s terms. That tension is now higher than it’s ever been.

Much of the motivation behind the executive actions Rosenblum lays out was probably explained as a natural power-grab from bureaucrats simply looking to expand their authority. But the motivation for amnesty today appears to be far more sinister. People like Obama, Rosenblum and Ornstein want to balkanize the nation, presumably out of distrust of “old white men.” And so serious is their drive toward this end, they’ll even ignore the letter and spirit of the law to get there.

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