President Obama’s plan for dealing with border surge aliens, which emphasizes the relocation and care of illegal border crossers over their immediate deportation, has Democrats and Republicans in Congress scrambling to develop legislation before the summer recess. But their differing plans make legislative action unlikely and give Obama cover for not doing what he should do – deport the aliens required under current law.

Key Republicans in the Senate say the president’s $3.7 billion emergency spending request is too expensive and can’t pass unless it includes language amending the 2008 William Wilberforce Trafficking Victims Protection Act, which allows unaccompanied alien children from non-contiguous countries to receive an immigration hearing in lieu of immediate deportation. Some Senate Democrats may end up agreeing but most oppose amending that law at all, let alone within the context of the emergency spending bill.

The House Republican working group’s plan reportedly includes a lower dollar amount (some sources say in the range of $1.5 billion), changes in the 2008 law, deploying the National Guard and other policy changes. House Minority Leader Nancy Pelosi, D-Calif., who had earlier said she would consider changing the 2008 law, made it clear she now opposes that approach.

Most House Democrats agree and will oppose a Republican bill that changes the 2008 law. That leaves Speaker John Boehner, R-Ohio, in the position of seeking votes from his caucus, which is not convinced any legislation is needed at this point because Obama can act on his own. “He has the money he needs,” said Rep. Raul Labrador, R-Idaho. Rep. John Duncan, R-Tenn., agreed. “The money is already there to take these children back,” Duncan said.

For unconvinced Republicans, part of the dispute concerns whether the sticking point between Democratic and Republican leaders – the 2008 law – is even applicable to the vast majority of surge aliens.

As noted in a Center for Immigration Studies report released this week, a significant majority of surge children are not “unaccompanied alien children” according to the federal definition. Federal law defines an “unaccompanied alien child” as an illegal alien under the age of 18 who is without “a parent or legal guardian in the United States.” The overwhelming majority of surge minors reportedly want to meet up with family or guardians here. Likewise there is little evidence that suggests they are victims of trafficking, which entails coercion. Instead, families and their children are reportedly willing participants in smuggling operations.

Obama called for changes in the 2008 law, but did not include them in his funding request. Ever since, most of the debate in Congress concerned whether the law should be amended, not whether it is applicable. It’s not, so Obama has the authority now to deport most surge aliens without further court hearings and does not need the requested funds to take action.


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