SELECTIVE DEPORTATION IS NOT LEGAL
Jon Christian Ryter
August 24, 2011
White House resident Barack Obama, whose popularity with Hispanics is plummeting like the stock market, bowed to pressure from social progressive immigration groups and announced he would halt the deportation of some 300 thousand illegals and proceed, in the future, on a case-by-case basis. Because he needed the votes of centrist voters in 2012 before his popularity nose-dived with the economy, Obama rejected the pleas of Hispanic groups in the past by telling them that he lacked the "broad categorical authority" needed to halt the mass deportations of illegals and that he had "...to follow the laws as Congress had written them." Surprising he would say that since he has spent three years ignoring not only the laws as Congress wrote them, but the Constitution as the Founding Fathers wrote it.
But with his plummeting popularity and a need to find voters—legal or illegal—Obama decided maybe he did possess that broad categorical authority after all. In a letter to Congress on Thursdays, Aug. 18, 2011 Homeland Security Director Janet Napolitano advised Congress that Attorney General Eric Holder had advised her that she possessed the discretion to halt deportations and focus on priorities on a case-by-case basis. "This case-by-case approach,' she said, "will enhance public safety. Immigration judges will be able to more swiftly adjudicate high-priority, such as those involving convicted felons." These are the no-brainers, Janet.
You load them on a Hercules C-4 cargo plane and fly them to Puerto William in the Commune of Cabo de Hornos (Cape Horn) at the tip of Chile, the Drake Passage, where sailing masters used to go to circumvent the globe. Since most illegals return to the United States within days or weeks of being deported, we need to give them a longer walk back to the border. And, the knowledge of what happens to them when they get caught, Obama's lack of "broad categorical authority" notwithstanding, will slow the penchant of illegals to leapfrog the border at will. The average temperature at Cape Horn is 41°F. Drop a planeload of illegals off at Puerto William in the summer—January or February—and the temperature could be as high as 57°F. Drop off a planeload of illegals in the winter—July—and your average temperature will be around 29°F without the wind chill since gale force winds are prevalent 30% of the time.
Of course, that's not the solution Napolitano or Obama had in mind. Illegals shivering at Cape Horn, in Chile, don't vote unless of course the Immigration Control Enforcement agency has them fill out absentee ballots before they disembark from the plane. The Obama plan is not about solving the problem of illegal aliens who are consuming what few jobs are left in this country. For Obama, it 's about winning enough votes to remain in the White House on January 20, 2013.
Obama's decision was immediately praised by immigration activists—and Democrats facing tough reelection campaigns in 2012 who need the Hispanic vote. Both legal and illegal. Attorney General Eric Holder decided the Administration had the authority to do whatever he felt compelled to do as long as Congress was deadlocked on the issue.
Congress, however, is not deadlocked on the immigration issue. The party bosses are. Congress wasn't deadlocked in 1952 when the Democratically-controlled Congress enacted the toughest immigration law in US history. In fact, it was so tough they had to enact the Federal Immigration and Nationality Act [Public Law 82-414.66 Stat] over President Harry S. Truman's veto. The Senate in 1952 was evenly divided, 48 Democrats and 48 Republicans. The vote, and overriding Truman's veto, was bipartisan. With 235 Democrats in the House and 48 in the Senate, overriding Truman's veto in both Houses required strong bipartisan cooperation. Thus, it can honestly be said that representative America enacted the solution to the immigration dilemma in 1952, but the princes of industry and the barons of banking and business who are determined to create a seamless, faceless global society, had other plans. No president from Truman to Obama has ever enforced the Federal Immigration and Nationality Act of 1952. Public Law 82-414.66 is a duly-enacted law which the Executive Branch has nullified by simply pretending it does not exist.
On May 26, 2011, in a 5 to 3 ruling, the US Supreme Court upheld the constitutionality of Arizona's immigration law, SB1070. What made it legal, the high court said, was that Arizona's law derived its authority from the Federal Immigration and Nationality Act of 1952. The Supreme Court said that "...as long as the State relies upon federal definitions of immigration status, then that State is not in conflict with federal law. That is exactly what SB1070 does." In writing the majority opinion, Chief Justice John Roberts said that "...while federal law makes the checks voluntary, it does not specifically bar States from making them mandatory."
Obama was correct when he was chasing middle class white votes. He said he lacked the "broad categorical authority" to act on his own. Under Section 8 USC 1324[a](1)(A)[iv][b](iii) law enforcement officers who have reason to believe that suspects they stop for any reason may be illegal, and do not check their legal status, and detain them if they are here illegally, will be guilty of a federal felony. Under Section 274 of Public Law 82:414.66 it is a felony for anyone to assist an illegal. You are guilty of a crime if logic tells you it's reasonable to assume the person you are helping is, or could be, an illegal alien and you do nothing. Employing them, providing them with shelter, transporting them from place to place, feeding them, or assisting them in gaining employment—or even by encouraging an illegal to remain in this country, is a felony. In the case of social progressive cities, counties or States, that create sanctuaries where illegals can live without fear of arrest and deportation, those city, county or State officials who provide those safe havens can—under the 1952 law—be held financially liable for any crimes committed by illegals who has been provided safe haven by the sanctuary city edicts.
What all this means is that Barack Obama does not have the legislative authority to deal with illegals on a case-by-case basis regardless what Eric Holder's non-binding, unofficial view may be. Nor, by the way, does the White House have the power to implement the "Dream Act" by Executive Order since doing so would violate federal law. Any member of the Executive Branch who followed the dictates of the "boss of the Executive Branch" to his employees (i.e., interoffice memo from the President to his staff: a textbook definition of an Executive Order) means that federal employee is actually violating the Federal Immigration and Nationality Act of 1952. While you might argue that the Executive Order could be construed as a waiver that exempts the federal employee from being prosecuted, it can also be argued that no where in the Constitution of the United States is the Chief Executive exempt from the law of the land.
When Obama made the decision to treat illegals on a "case-by-case" basis, pro-border security and anti-immigration policy advocates blasted the Administration for failing to uphold existing immigration law. Pro-amnesty, pro-Dream Act Congressman Luis V. Gutierrez [D-IL] said the "...announcement shows that this president is willing to put muscle behind his words and to use his power to intervene when the lives of good people are being ruined by bad laws." (Bad laws in the view of Gutierrez are laws that protect our borders and treat illegals as illegals.)
Immigration legislation has been stalled in Congress for years because Republicans favor strict enforcement of existing immigration law—particularly the Federal Immigration and Nationality Act, amended in 1987 to provide for temporary agricultural workers who were allowed into the country for planting and harvesting of crops, but whose employers who had to account for each temporary worker, and were required to return them to their native countries at the end of the planting or picking season.
Democrats, on the other hand, believe that anyone who is able to sneak into the country in the dead of night without breaking their legs climbing over a border fence, drowning in the waist deep Rio Grande, or being hit by a fast moving vehicle as they run the gauntlet of the four football field-wide Trans-Texas Corridor, I-35 in Laredo, Texas are entitled to live free on the expense of those who, by birth or legal process, live and work here legally.
As Gutierrez lauded Obama's ploy to ignore existing immigration law while pretending none exists, Congressman Lamar Smith [R-TX], Chairman of the House Judiciary Committee said what Obama is trying to do is grant backdoor amnesty to illegals. "The Obama Administration," he said, "should enforce immigration laws, not look for ways to ignore them. The Obama Administration should not pick and choose which laws to enforce. Administration officials should remember the oath of office they took to uphold the Constitution and the laws of the land."
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In 2009, shortly after he took office, the US Citizenship & Immigration Service prepared a draft memo arguing that Obama had the broad powers with the use of an Executive Order to create a non-legislative version of amnesty. In June of this year, ICE issued new guidelines which, effectively, did just that by expanding its own authority to decline to prosecute illegal aliens who have not committed other crimes, or are gang members, completely contradicting Janet Napolitano's statement that by using the "case-by-case" approach, her department and the DOJ will be able to move more swiftly to adjudicate those cases which involve convicted felons or those who are gang members.
In point of fact, since the Federal Immigration and Nationality Act exists, Obama cannot constitutionally issue an Executive Order that would repeal any provisions of that law since he has no legislative authority to overrule Congress other than to veto current legislation passed by that body. He can't repeal existing law. Since the problems this nation faces with illegal aliens were solved in 1952, its time the people of the United States demand that the White House, together with all federal, State and local police angencies enforce that law to its fullest extent. If they don't, its times to start recalling a whole big bunch of politicians.