Wednesday, August 31, 2011

Prosecutorial Discretion

Nobody really knows how many unauthorized aliens are in the United States, but most studies put the number in the 10-12 million range.[1] What we do know is that the deportation rate is currently at an all-time high—about 400,000 per year. Meanwhile, estimates suggest that, even accounting for deportations and voluntary departures, the unauthorized alien population has been increasing at a rate of about 500,000 a year.

In other words, we're clearly well on our way to resolving the problem. If current trends continue, by my rough calculation, we should have immigration under control right around the time the sun becomes a red giant and destroys all life on Earth.

However, if we want a solution that might take less than five billion years, we can, in broad terms, do one or more of the following:
  1. Grant some form of general or limited amnesty.[2]
  2. Commit more resources to deportation efforts and border protection.[3]
  3. Allow the economy to degrade to the point that the problem takes care of itself.
#1 isn't going to happen anytime soon. #2 might be theoretically possible, but lately Congress has been rather stingy about throwing money around. Honestly, #3 is most likely to work, and is probably why the rate of illegal immigration appears to have slowed in recent years, but let's assume nobody wants to go any further down that route. So we're stuck with the deadly-ball-of-hydrogen plan for now.

That being the case, it would make sense for the Obama administration to put some thought into how they allocate their limited resources. If one alien is a convicted rapist, and another is a college student with above-average grades and no criminal record who was brought to the U.S. by his parents at age 10, they may be equally deportable under the law, but I think it's obvious who the taxpayers want the government to deal with first. Two weeks ago, the White House announced just such a policy:
Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States. And they have succeeded; in 2010 DHS removed 79,000 more people who had been convicted of a crime compared to 2008. Today, they announced that they are strengthening their ability to target criminals even further by making sure they are not focusing our resources on deporting people who are low priorities for deportation. This includes individuals such as young people who were brought to this country as small children, and who know no other home. It also includes individuals such as military veterans and the spouses of active-duty military personnel.
While the long-term effects of the new policy remain unclear, the immediate consequence was undoubtedly a heap of torn menisci and strained ACLs, given the intensity with which knees were jerked:
This step by the White House amounts to a complete abrogation of the President's duty to enforce the laws of the land and a huge breach of the public trust. Never, in the history of federal immigration enforcement, has an administration willfully and so egregiously usurped Congress's and the people's role to decide immigration issues. In essence, the administration has declared that U.S. immigration is now virtually unlimited to anyone willing to try to enter and only those who commit violent felonies after arrival are subject to enforcement.
What if citizens would stop paying taxes, or refuse to participate in Social Security? If the executive branch can countermand a law of Congress, why can’t the voters – those who grant Congress its authority – do the same?[4]
President Obama is once again over-extending his hand to implement his political agenda previously struck down by Congress. The message to those thinking about coming to the United States illegaly is clear: come here, break the law by entering the United States, a sovereign country, without permission, use public services while burdening American taxpayers while not paying into the system, burden our schools and health care system, all without consequences to the illegal immigrant population.
An increasingly desperate Barack Hussein Obama, in a treasonous attempt to pander to foreigners at the obvious expense of America’s interests and security, has imposed amnesty for illegal aliens by fiat.
Aside from a few basic points of grammatical structure, almost all of that is wrong. It's not amnesty—no one is being legally absolved of their transgressions. It's not a usurpation of Congress—all immigration laws remain in effect, and all aliens who find themselves deportable under those laws are just as deportable today as they were two weeks ago. And it's not unconstitutional—the executive branch is perfectly within its power to decide how to enforce a law, especially when equal enforcement across the board is a practical impossibility. If anything, it's silly that this wasn't already the policy.

What does it say about our collective understanding of immigration that Obama does something not only reasonable on its face, but also likely to address and alleviate one of the more incendiary conservative talking points (i.e. that "illegals" are a bunch of dangerous criminals), and this is the reaction he gets? I wouldn't even call it a backlash, because it's too ill-informed. It's just an excuse. People care enough about immigration to react emotionally, but not quite enough to demand analysis that at least borders on honest and fair, which gives commentators free reign to ignore reality and be as vitriolic as they want.

1. Bear Stearns conducted a study that put the number at over 20 million. This is because the researchers made their "Money Ball" shot, which makes the results count double.
2. Of course, many would argue that "amnesty" would be entirely counter-productive, as it creates a precedent that will lead to increased illegal immigration in the future. I'm not going to get into that now, except to make the point that, as is so often the case, it's probably not that simple.
3. I suppose there's always a case to be made for doing more, but this recent Washington Post editorial makes the case that our border is considerably more secure than Republicans make it out to be. I highly recommend reading it, because it reinforces what I already believe.
4. A little off-topic, but here's the best part of that RedState article, and by best I mean most infuriating:
Secretary of Homeland Insecurity Janet Napolitano proclaimed in a letter to the Senate that she will suspend deportation proceedings and grant amnesty to those who ostensibly fit the criteria of the Dream Act – a bill that was defeated with overwhelming bipartisan support of Congress.
In December 2010 the DREAM Act was passed by the House, 216-198. It was subsequently rejected by the Senate, 41-55. That's 41 voting against passage—or, more precisely, against cloture, because the filibuster has morphed from a rarely-seen act of desperation into a thing that we just have to deal with now.
    There are 535 members of Congress. Fewer than half of them (45%) voted against the DREAM Act. Of the Democrats in Congress at the time, only 14% voted no, compared to 89% of Republicans. And this is "overwhelming bipartisan support" for rejecting the bill. It must be a lot easier to write when you don't care what words mean.

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