The Plan B of the open-borders crowd would dispense with the Constitution

220px-John BoehnerRSN ADDED IMAGEThere’s still a real chance that the Captain Schettinos of the House Republican brain trust will rescue Obama’s presidency by passing an amnesty. But some in the open-borders crowd are getting nervous about John Boehner’s ability to achieve Obama’s objectives.

Their fear is that this session of Congress will end with no amnesty bill on the president’s desk, or with one whose criteria they consider too draconian. Their fallback strategy? Have Obama amnesty the illegal population by administrative fiat.

Fawn Johnson at National Journal writes (emphasis added):

Immigration-reform activists aren’t supposed to talk publicly about a Plan B. They can’t, or won’t, answer questions from the media about what they will do if no bill passes this year to legalize the undocumented population. But as August wears on and there is no clear sense of what the House will do on immigration, some are starting to speak out. . . .

The idea behind the “other track” is to freeze the current undocumented population in place through an administrative order, give them work permits, and hope for a better deal under the next president, with the hope that he or she is a Democrat.

Actually, the call for an amnesty decree isn’t even all that quiet. Nelson Peacock, until recently head of congressional relations for DHS, published an op-ed in the Los Angeles Times last week arguing Obama’s threat of an amnesty proclamation “might just be the trump card he needs to bring House Republicans to the negotiating table.”

The idea of Obama’s just decreeing amnesty has been floating around since the beginning of this administration. In 2009, I was on a radio talk show where one of the other guests brought it up, approvingly, and it was one of the options presented in a February 2010 memo drafted by Janet Napolitano’s office. But the president was always cautious, saying repeatedly that he had no authority to legalize illegal immigrants. In the president’s first years in office, his exercise of “prosecutorial discretion” in immigration policy, while illegal in its breadth, didn’t cross the line to granting work authorization and thus de facto legal status.

Then came the 2012 presidential campaign. Hispanic enthusiasm for the president was flagging and his advisers were genuinely concerned about losing the election. The administration needed, in the words of CUNY political scientist Stanley Renshon, “the immigration equivalent of astrophysics’ Big Bang Theory of the universe’s creation to reassure, energize, and consolidate his support in this electorally important ethnic group.”

And so was born Deferred Action for Childhood Arrivals, or DACA. While the name implies nothing but a postponement of enforcement, the program, announced in June of 2012 and initiated in August, provides de facto permanent amnesty for illegal aliens who came before their 16th birthday. Far from being simply a matter of immigration agents’ looking the other way, this “deferred action” status provides a work card, a (legitimate) Social Security number, a driver’s license, travel documents allowing the holder to leave and return to the U.S., and eligibility for affirmative-action benefits, the Earned Income Tax Credit (a form of welfare run through the IRS), and many state and local welfare benefits.

Nor is there anything temporary about it. The program is modeled after something called Temporary Protected Status, which provides the above-mentioned benefits to illegal aliens who don’t qualify as refugees but whom we don’t want to deport because of natural disaster or civil strife back home. TPS’s raft of deadlines and registration requirements might suggest that it’s really just a short-term fix, a hiatus that is followed by renewed enforcement. To borrow from James Taranto’s tweets, HA HA HA HA HA HA HA HA HA HA!!

As you might have guessed, no one has ever been sent home because his “temporary” protected status expired. No one. Liberian illegal aliens were granted TPS in 1991 because of civil war back home, and it was renewed for 16 years. Then the Bush administration discontinued the status in 2007 (the war having ended four years earlier), only to turn around and grant them “Deferred Enforced Departure,” which is the same thing under a different bureaucratic label.

In short, the 500,000 illegal aliens who have been amnestied under Obama’s “deferred action” decree are never, ever going to leave. Their amnesty is permanent and irrevocable.

So, might we expect another amnesty “big bang” if the normal workings of the legislative branch fail to yield the result Obama demands? It’s unlikely that the administration would simply launch “a larger registration program that reaches the entire legalization population,” in the words of the February 2010 memo. Such brazen defiance of the constitutional order could risk impeachment.

But including other groups, incrementally, in the Deferred Action amnesty is a less audacious way of achieving the same unconstitutional objective. Peacock, the former DHS official, suggests in his L.A. Times piece that Obama could unilaterally amnesty “those with a longtime presence in the United States or those with U.S.-citizen family members.” National Journal’s Johnson is more specific in listing candidates for the next administrative amnesty: “parents of ‘Dreamers’ or parents of children who are citizens because they were born here, people who are employed, people who are caregivers, and so on.”

Another means of accomplishing the same thing would be to grant Temporary Protected Status to all Mexican and Central American illegal aliens (some 80 percent of the total), based on unstable conditions in their countries. Alternatively, the administration might send the message that any illegal alien applying for asylum will be approved, waiving the statutory one-year deadline after arrival to file such applications. This last is suggested by this week’s release of nine DREAMer illegal aliens who left the country and then demanded reentry as a publicity stunt. They were released from detention Wednesday to pursue their (manifestly unfounded) claims for asylum.

Whatever the pretext, the supporters of amnesty are clearly moving toward support for extra-constitutional measures if, in the words of the National Journal piece, “Congress can’t get the job done.” The implicit suggestion is that, with regard to immigration, the nation is in a state of emergency that justifies the chief executive to rule by decree. If Congress permits such policies to pass without opposition, the consequences will resonate far beyond today’s immigration debate.

Center for Immigration Studies, Mark Krikorian.

 Mark Krikorian, a nationally recognized expert on immigration issues, has served as Executive Director of the Center for Immigration Studies (CIS) since 1995.