A Reader Analyzes The Latest Heritage Foundation Report On Obamnesty, And Finds It Wanting

From: Jeff Stewart  [Email him ]

As the rumblings of a new Obamnesty continued this week, Heritage put out a new report attempting to explain why such a move would be bad for the country, namely that it would be “unjust”, “unfair”, “costly” and simply ‘wouldn’t work.’

Backgrounder #2944 on Immigration

August 14, 2014

Administrative Amnesty: Unjust, Costly, and an Incentive for More Illegal Immigration

By Derrick Morgan and David Inserra

What’s missing is that administrative amnesty is also flat-out illegal and that this report wasn’t written by the think-tank’s Legal Policy team (instead, it was written by Heritage’s “Economic Freedom and Opportunity Institute”) shows how useless that department’s been since DACA was pushed through in 2012.

When Obama’s amnesty plan was announced, Heritage’s Senior Legal Fellows took the position that because the policy grants “employment authorization” papers and not green cards per se, it didn’t completely mimic the Dream Act (which had been rejected 24 times since Orrin Hatch originally introduced it in 2000), and therefore probably wasn’t illegal.

Why they didn’t reach to actual experts in the field, such as Kris Kobach, is telling. The $60,000,000-a-year foundation of course has always been half-committed to the issue with the previous President, Ed Feulner, honestly believing it’s possible to “reach out” to the Hispanics and change their 40-year voting habits. Then there was the Rector/Richwine report which took months to come out and focused solely on costs.

Kobach’s complaint on behalf of ICE agents lays out expertly the case against Obama’s constitution-shredding policy. Indeed, a federal judge found as much last year, although he rejected the suit on procedural grounds.

Chiefly, Kobach claims in his brief that, in 1996, the IIRIRA amendments to the INA provided that all illegal aliens “shall be inspected by immigration officers” (8 U.S.C. § 1225(a)(3)) and that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding.” (8 U.S.C. § 1225(b)(2)(A)) (emphasis added).

Although this is enough to show Obama violated the Constitution’s ‘Take Care’ Clause, Kobach also explains that because DACA so closely resembled a federal regulation, then-Secretary Napolitano violated the Administrative Procedure Act by failing to make it available for public comment before it was implemented.

Then there’s the issue of “prosecutorial discretion”, which has generally only ever been granted on a case-by-case basis – the first such case was applied to John Lennon in the early seventies.

Why Heritage has never made these claims is curious as is the GOP only choosing to now sue the President for his Congress-circumventing executive orders, a full 26 months after DACA was announced. The GOP Establishment, in all its limp-wristed forms, has got to go.
See a previous letter from Jeff Stewart.