Tag: DACA

Domestic Policy, Government, Immigration, Uncategorized

A Blow for Immigration and Governmental Reform

Bob Claude |

This country will not be a permanently good place for any of us to live in unless we make it reasonably good place for all of us to live in.

Theodore Roosevelt

A federal district court in Houston has struck down the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program and its companion for parents of those children. Specifically, it held that the program was an administrative rule making required to follow the notice and comment process of the federal Administrative Procedures Act (APA).  The failure of the Obama Administration to follow this process rendered the program illegal. CNN helpfully included a copy of the Order and Opinion of the court here. The decision is not only a step towards effective immigration reform, but also strikes a blow against the power of the administrative state. 

The court essentially took up the issues ignored in the US Supreme Court’s Regents of the University of California opinion that I previously discussed here.  This decision struck down the attempted rescission of the DACA program by the Trump Administration as itself violating the APA while glossing over the illegalities in the original rulemaking. This new federal court opinion turns the tables and focuses on those infirmities, noting that the Supreme Court itself held that DACA was not simply a passive non-enforcement policy. Instead, it conferred affirmative immigration relief such as the right to receive a work permit and the right to travel abroad without permission.  It did so despite admitting in the original memorandum that only the Congress could confer affirmative immigration relief. The district court’s opinion built on Justice Clarence Thomas’s dissent in the Regents opinion by highlighting the real reason for the program – the inability of successive Presidents to unite the Congress and country around an immigration bill that included effective limits and enforcement as well as the necessary relief for longtime residents. 

The district court was mindful of the hardships an immediate cessation of the program would cause to current participants and simply prohibited further expansion of the program for the time being. The Biden Administration has announced that it will appeal the order and urged Congress to pass a bill fixing the problem. The administration’s latter position is correct. Both political parties need to look beyond the twin corruptions of identity politics and corporate contributions to pass a comprehensive immigration reform legalizing the status of the “Dreamers” and creating real enforceable limits on future immigration as I advocated in this post. A truly comprehensive answer to the immigration crisis would be a new beginning for insuring the American Dream for both lifetime citizens and immigrants alike. 

Domestic Policy, Immigration

Time for Action, not Evasion

Bob Claude |

An old proverb advises there are two things decent people should never see being made –  laws and sausages. Both processes can be disgusting to watch.  Immigration legislation certainly falls into that category. For example, the crisis at the border should be focusing the attention of Congress on immigration enforcement and border control issues.  Instead, globalist Democrats and some Republicans in the House of Representatives sent two bills to the Senate with the transparent objective of avoiding the duty to enact any meaningful reform by creating two sets of amnesties.  This allows them to side-step the controversial, but necessary immigration limitation and enforcement issues.  The goal of legalizing some long – time immigrant residents is laudable and necessary, but should be part of comprehensive immigration reform.  

The first bill (HR 6) is the American Dream and Promise Act, which would legalize the so-called Dreamers, though it would extend this protection far beyond those currently covered by the Deferred Action on Childhood Arrivals (DACA) and associated programs. Currently, only those children who entered the United States without authorization prior to June 15, 2012 (and their parents) are covered by DACA and associated prosecution deferral programs. HR 6 would extend the program to cover 3 million children, including children of other visa holders that ordinarily would be required to leave.  Many of these are deserving of relief, but it again should be part of a comprehensive bill. 

The second bill is more problematic. The Farm Worker Modernization Act (HR 1603) would allow up to 1.5 million farmworkers who have worked without authorization for up to 10 years to obtain temporary status and the opportunity to attain a green card and then obtain other employment.  It would also grant amnesty to the employers who illegally employed them. The main saving grace of the bill is that it would require farm employers to use E-verify for their workers in the future.  It also updates the visa programs for farm workers and strengthens protections for their wages and working conditions. 

Again, both of these bills could be appropriate ways to bring these workers out of the darkness and give them the fundamental rights they need.  However, the Senate should not take up either bill now until it considers a comprehensive immigration bill with effective limitations and enforcement mechanisms. I  urge you to write or e-mail your state’s senators to ask them to table or vote against the two bills until it considers such a comprehensive bill.   

Domestic Policy, Government, Immigration

The Swamp Wins Again

Bob Claude |

In this site’s mission statement, I said that as much as Theodore Roosevelt was a model, there would be times we would disagree with his likely approach to an issue.  The Supreme Court’s recent opinion on the DACA immigration program highlights one of those differences – the wisdom of unchecked presidential power. 

The Court’s opinion errs not just because it continues a program that flouts the basic rules of immigration law.  The so-called Dreamers would have been granted permanent residency eventually. However, it should have occurred through the legislative process as part of a comprehensive immigration reform that created real and enforceable limits on future immigration.  Instead, the Court used arcane administrative obstacles to allow the Obama Administration to evade the Congress and the people to achieve its political goals. In doing so, the Court has undermined the constitutional separation of powers and the democratic process.

The breadth and depth of the power granted by the Court to administrative agencies (and thus the presidency itself) can only be understood by delving into the details. The court admits that the DACA program (and the corresponding rule protecting the parents of DACA children) were affirmative rules subject to the Administrative Procedure Act. This law ordinarily would require such rules to be issued through a notice and public comment process and adopted only after “reasoned decisionmaking” (the Court’s language). They then could be appealed for judicial review by interested groups such as the Federation for American Immigration Reform, which advocates for immigration restrictions. Instead, the program was initiated by a three-page “memorandum” not posted for prior comment and justified on conclusory grounds that such immigrants “lacked the intent to violate the law”, are “productive contributors” and “know only this country as home”. No other justification or evidence was cited to support the memorandum. In addition, by acting through such a memorandum, the administration made it more difficult to challenge the program in the courts.

Thankfully, several states did challenge it and the Fifth Circuit Court of Appeals issued a preliminary ruling holding it to be an illegal rule making.  After President Trump took office, Attorney General Jeff Sessions issued an opinion to the Department of Homeland Security holding it to be illegal. Based on these opinions, the acting Secretary of the Department of Homeland Security decided to rescind the program. That should have been the end of the matter. Instead, a new set of appeals were filed and the Supreme Court struck down the rescission and sent it back to the agency so it can consider at least 8 different objections by supporters of the rule. In short, the court ruled that an agency rule having a multi-billion dollar economic impact and granting new rights to over 20 million people could be adopted without public comment or congressional input on conclusory grounds, but could only be repealed by engaging in a detailed factual and legal analysis.

Justice Thomas’s dissent accurately describes the danger to our constitutional democracy, stating that an agency is  now “not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration”.  It grants agencies and the beneficiaries of their largesse more rights than the people as a whole. No wonder many refer to Washington as a swamp. Policies adopted through the democratic process go in, but become so mired in governmental and special interest muck that they never come out.

To his credit, President Trump has issued an executive order prohibiting this kind of rogue administrative action.  At the same time, he encourages the same culture of presidential power by constantly acting through executive orders rather than by legislation.  He has never seriously pursued a comprehensive administrative law reform in the Congress.  Without this, a succeeding administration can undo his restraints by its own executive order. As we approach the 2020 election, American nationalists who believe in the unique value of our constitutional democracy should insist that candidates, including Trump, commit to reform that drains the administrative swamp once and for all and opens up policy making to the American people.