How the GOP Congress Can Win on Immigration: Enabling Patriot Bureaucrats


On Tuesday, February 3, the Senate Democrats will likely block measures that the Republican House of Representatives passed to reverse Obama Regime Administrative Amnesty [Democrats move to block GOP on immigration, by Erin Kelly, USA Today, February 2, 2015] Signs are that the GOP Congressional leadership will probably withdraw its immigration amendments rather than risk a shutdown of part of the Department of Homeland Security [GOP Leaders Minimize Immigration Fight While Obama Pushes For Amnesty Funding, by Neil Munro, The Daily Caller, February 2, 2015]

This is where the real battle begins. What is to be done when the House receives the DHS funding bill? The key: write in precise language that is designed to use the bureaucracy against itself and make implementing the Obamnesty impossible. The restrictive language needs to be both specific, to cover the precise legal rationales that the Obama Administration is using to defend Amnesty, and broad enough to cover any new strategy the Administration might come up with to enable its plans.

One of the most important pillars of the Obama Regime’s Administrative Amnesty: the claim that any illegal alien in the United States could be allowed to remain in the United States illegally and issued a work permit (Employment Authorization Document, EAD) at the whim of the Federal government.

This claim originated during the Clinton Administration under the tenure of then-Immigration and Customs Enforcement Commissioner Doris Meissner. Her rationale: limited resources meant that ICE had to ignore the law in some cases. Yet Obama Regime has now also claimed that illegals can not only stay in the country because of this type of de facto Amnesty, but can gain rights and privileges including the always-coveted employment authorization.

Therefore, any specific legislation needs to target “prosecutorial discretion” and also outline penalties for “non-feasance,” or the refusal of a federal employee to perform a lawful duty.

Any DHS funding legislation must also prohibit specific practices that the current bureaucracy exploits. These include the following: Deferred Action, Extended Voluntary Departure, Deferred Enforced Departure, Public Interest Parole, and Parole in Place. These immigration-specific phrases were the basis of Amnesties in the past and the precedent for the current Administrative Amnesty. They should be specifically prohibited.

Even more importantly, language should also be included prohibiting any other action that would relieve any illegal alien—defined as any alien not lawfully admitted to the United States after inspection or parole by an immigration officer—of any disability under immigration law. This would also mean a prohibition on any alien who is unlawfully present being able to “adjust status” or make any applications for any benefits, parole into the United States, or inspection and/admission to the United States.

Why does this matter? As it stands today, the Obama Regime can simply say that any interaction (including granting parole) between the federal government and an illegal alien constitutes an “inspection.”

And of course, the real problem is the Obama Regime. Therefore, the language that funds the Department of Homeland Security should prohibit any employee or officer of the United States from accepting, adjudicating, admitting, paroling, or approving any benefit to any alien unlawfully present in the United States. This should include a prohibition on adjudicating any application for waiver of any disability on admission to the United States or adjustment of status in the United States.

What would be the Obama Regime’s reaction to these bureaucratic restrictions? Quite possibly, it would simply ignore the law. If it can ignore immigration law as written, there is nothing keeping it from ignoring restrictive language in a funding bill. And if there is not enough voting power or political will for impeachment, Obama may get away with it.

However, the Republicans can include language that would enable judicial review. The precedent is the current practice in the Environmental Protection Agency (EPA), where outside parties can sue the EPA in order to make the bureaucracy enforce certain statutes. In this case any American citizen would be given standing to bring a lawsuit to enforce provisions of this act.

The drawback: the wheels of justice turn slowly. The Obama Regime could use the courts to play this out for the two years remaining in this term. So a clause that would provide legal standing to Americans and enable judicial review of immigration law should be supplemented by language both prohibiting DHS employees from implementing illegal actions and also protecting those employees who refuse to enforce the Obama Amnesty from disciplinary action.

The goal: to protect those government employees who want to do their job and enforce immigration law, and to impose penalties on those employees who try to impose President Obama’s Administration Amnesty.

The result: rank-and-file federal employees would be free to enforce immigration law by refusing to unlawfully issue any benefit to illegals, make arrests of illegals, and deport illegal aliens regardless of illegal orders from the White House. These employees would also have a cause of action in court to file for redress and obtain an injunction against illegal orders, with any supervisor, manager, executive, or constitutional officer personally liable for any violation.

Such language would undermine the Regime’s authority over the bureaucracy, but in a manner that supports the rule of law. And it would be a de facto death sentence for the Administrative Amnesty.

Employees would also be authorized to seek an injunction against illegal orders that would be binding nationwide. All it would take is one employee and one sympathetic Federal District Court judge to end the Obama Regime Administrative Amnesty.

Much of the above is very much inside baseball. Yet such initiatives may be more likely to succeed than many of the more expansive tactics immigration patriots want but their elected officials lack the stomach for. Fighting a bureaucratic battle will not provoke the immediate opposition of the Slave Power or enrage the usual Leftists. It will move the struggle to a battleground where large donations and the hostile Main Stream Media are less important. It is the political equivalent of guerilla warfare.

This does not mean that we should back away from pushing for specific reforms, such as requiring E-Verify or building a border fence. (Or closing the Anchor Baby loophole). However, the Obama Administration’s Administrative Amnesty is not legislation, but a bureaucratic decree. It can be overcome by detailed legislation designed to counteract it bureaucratically where it is weakest—on legal grounds.

It’s one of the easiest things the new GOP Congress can do. And by fighting on the seemingly unimportant details of bureaucratic policy, the GOP can enable a larger victory on the entire immigration issue.

The blogger Federale (Email him) is a 4th generation Californian and a veteran of federal law enforcement, including service in the legacy Immigration and Naturalization Service, the Department of Homeland Security, and other federal law enforcement agencies.

Federale`s opinions do not represent those of the Department of Homeland Security or the federal government, and are an exercise of rights protected by the 1st Amendment to the Constitution of the United States.