If Immigration Reform Stalls, Federal Courts Could Have a Say

Democrats might tweak immigration reform to make Republican opposition inevitable and hit them in 2014 for being obstructionist. This could hurt Dreamers by giving courts enough time to void Obama's Executive Order

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Rick D’Elia / Corbis

Arizona state capital police keep an eye on pro–Dream Act protesters trying to deliver a message of "love" to Arizona Governor Jan Brewer on Feb. 14, 2013

When President Obama and Democrats in Congress say they would like to pass a comprehensive immigration-reform bill this year, it’s entirely possible that they mean exactly what they say. But in Washington, where taking a statement at face value is the mark of a rube, there’s speculation that, deep down, the Democrats would rather “save the issue” — tweak the process in some way that would make Republican opposition inevitable, then use the failure of reform as a weapon in 2014.

That suspicion spiked over the weekend when details of a White House immigration proposal lit up the news sites in time to be squabbled over on the Sunday-morning talk shows. The Administration strongly denied it was tossing a wrench into delicate congressional negotiations, but remember what we just said about taking statements at face value. Republican Senator John McCain of Arizona, a key figure on immigration policy, smelled a rat: “Does the President really want a result?” he asked on Meet the Press. “Or does he want another cudgel so he can beat up Republicans to get an advantage in the next election?”

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So are Democrats secretly maneuvering to save the issue of immigration? Are Republicans cynically accusing the Democrats of trying to save the issue as a way of shifting blame should reform fail? “Oh, what a tangled web we weave,” the writer Walter Scott famously wrote, “when first we practice to deceive.”

Of course, the only way to prove conclusively that an issue is not being saved is to reach a compromise and pass a bill. And members of Congress who are participating in bipartisan talks on immigration say they are making progress and a real solution remains possible. But if the issue is saved for the next election, don’t be surprised if the federal courts get involved. A lawsuit pending in Fort Worth asks a U.S. district judge to render President Obama’s 2012 Executive Order on immigration null and void.

The order, circulated by Department of Homeland Security Secretary Janet Napolitano, was designed to implement large parts of the Dream Act — despite the fact that Congress never passed the act. Immigrants landing in the U.S. illegally as children would not be deported as long as they met certain virtuous benchmarks: going to school, serving in the military, staying out of jail and so on. U.S. Immigration and Customs Enforcement agents were instructed not to initiate legal proceedings against so-called Dreamers. In the view of 10 of the agents, this amounts to ordering them to break the law. Legislation passed in 1996 can be read as requiring agents to open formal proceedings against immigrants who can’t prove their lawful status.

(MORE: Will Immigration Reform Work This Time?)

“The directive commands ICE officers to violate federal law,” says the complaint, which was written by attorneys Kris Kobach of Kansas and Michael P. Jung of Texas, a formidable and conservative pair. The order also “commands ICE officers to violate their oaths to uphold and support federal law … unconstitutionally usurps and encroaches upon the legislative powers of Congress … and violates the obligation of the executive branch to faithfully execute the law.”

The government tried scoffing at the lawsuit — which has been joined by the State of Mississippi and its governor, Phil Bryant. (Failure to enforce the law will cost the state millions in benefits for the Dreamers, the state maintains.) But U.S. District Judge Reed O’Connor ruled this month that the agents have standing to sue and set a hearing on the complaint for early April. There, the Administration’s lawyers are likely to argue that a department operating with limited resources to address a vast problem must have freedom to set priorities. And that the President is justified in deciding that otherwise law-abiding immigrants, who did not choose to enter the country as children, should not be an enforcement priority.

For the judge to side with the agents would “pose a safety risk by diverting much needed resources from the removal of aliens who are serious criminals, repeat offenders or who otherwise pose national security risks,” the government warns.

It’s all moot if Congress passes a new immigration act that deals with the Dreamers. ICE agents will, presumably, be instructed to enforce the provisions of the reformed law, and the Executive Order of 2012 will be packed off to the National Archives. Issue resolved — if such a thing is still possible in Washington.

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