Obama’s chaotic immigration policy: retain power *not* to enforce immigration law, and collect from the employers

This nation is united on immigration in one aspect… we all know there’s a problem. But the fuel poured on the fire when we debate solutions has become ugly and beyond civility in all but a few cases.

We should be able to turn to leadership to find a solution that’s conducive to the best health of this nation, and our realistic abilities to assimilate welcomed immigrants – both culturally and fiscally. But as we look to the Oval Office dais, we see chaos instead of leadership.

Obama’s answer for tackling the immigration problems is incomprehensible, reprehensible, and utter chaos. On the surface, he “works hard” (in between golf games and vacations, that is) to present a front that looks like he’s doing something. After sending more National Guard to the borders to act as paper pushers, his latest “I’m doing something” moment is an increase in surprise raids and audits of American businesses, in a state about as far away from the Mexican border as you can get… Washington.

But the real head scratcher is that these “enforcement” tactics – surprise audits of employee records – appear to be financially motivated instead of immigration related. ICE (Immigration and Customs Enforcement) ID’s the illegals, makes sure they are fired, but few – if any – are deported. Therefore they are free to get re’employed elsewhere, so another company can be fined a’new. It’s a real revenue getter… keep the illegals here, and keep fining the employers.

The Obama administration has replaced immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies’ records for illegal immigrant workers.

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Over the past year, Immigration and Customs Enforcement has conducted audits of employee files at more than 2,900 companies. The agency has levied a record $3 million in civil fines so far this year on businesses that hired unauthorized immigrants, according to official figures. Thousands of those workers have been fired, immigrant groups estimate.

Employers say the audits reach more companies than the work-site roundups of the administration of President George W. Bush. The audits force businesses to fire every suspected illegal immigrant on the payroll— not just those who happened to be on duty at the time of a raid — and make it much harder to hire other unauthorized workers as replacements. Auditing is “a far more effective enforcement tool,” said Mike Gempler, executive director of the Washington Growers League, which includes many worried fruit growers.

Immigration inspectors who pored over the records of one of those growers, Gebbers Farms, found evidence that more than 500 of its workers, mostly immigrants from Mexico, were in the country illegally. In December, Gebbers Farms, based in this Washington orchard town, fired the workers.

“Instead of hundreds of agents going after one company, now one agent can go after hundreds of companies,” said Mark K. Reed, president of Border Management Strategies, a consulting firm in Tucson that advises companies across the country on immigration law. “And there is no drama, no trauma, no families being torn apart, no handcuffs.”

No “drama” or “trauma”? Just what does this consultant think unemployment does to a family, compounded by the reality that getting another job locally results in the same spur of the moment discharge? It would be a blessing to at least be returned to your own country, courtesy of Uncle Sam and the US taxpayer. And what’s this “no families torn apart” crap? There was never an intent to keep kids here, and ship the parents home. Nor has any family been torn apart since the law hasn’t even begun to be enforced.

If getting illegals fired, but leaving them in the country wasn’t “compassionately” idiotic enough an idea, we now watch as Obama’s DOJ sues Arizona for creating an enforcement channel of immigration, using federal statutes as the foundation, specially training officers, and transporting any illegal alien to the proper federal authorities.

Per the lead up rhetoric, it was speech after speech, and pundit after pundit, emphatically stating the law would result in difficult standards of ID that “no one” is required to carry around, and lead to racial profiling.

To the first charge, all any one who is stopped for probable cause – unrelated to their immigrant status, or race – is show a valid AZ drivers license, state ID, or other common ID. Did that register?

From the Arizona legislative website’s text of their law, Article 8, Enforcement of Immigration Laws, 11-1051 (B) 1-4

A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN IMPLEMENTING THE REQUIREMENTS OF THIS SUBSECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR ARIZONA CONSTITUTION. A PERSON IS PRESUMED TO NOT BE AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IF THE PERSON PROVIDES TO THE LAW ENFORCEMENT OFFICER OR AGENCY ANY OF THE FOLLOWING:

1. A VALID ARIZONA DRIVER LICENSE.

2. A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.

3. A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL
IDENTIFICATION.

4. IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED
STATES BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL, STATE OR LOCAL
GOVERNMENT ISSUED IDENTIFICATION.

Just show your AZ, or other state driver’s license if you’ve been stopped for a traffic infraction – the same thing we all have to do. Or carry a state ID if you don’t drive. Neither of these are out of line since you need these just to cash checks, get on to an airline… sundry reasons.

Criteria for getting an AZ ID card/license? The Arizona DMV requires two proof of ID’s to get either the license or the state ID. One of them must have your date of birth, and there’s a list to choose from on the linked PDF. The second ID doesn’t have to have the date of birth, and can be as simple as a credit or bank card.

And what about that “racial profiling” Obama and ilk were fear mongering about? How ironic that nowhere in the DOJ official complaint filed is racial profiling mentioned as a legal argument. Fact is, you can’t argue racial profiling until the law is implemented. Therefore to use the media hype talking points that it’s unconstitutional as racial profiling is not only premature, that activity is already illegal. Anyone, in fact – regardless of race or gender – has recourse to challenge any detention as being a legal stop by law enforcement in the US courts.

Or have we shifted into a new way of legislating… assuming that if a law has “the potential” to be abused, it should be struck prior to enactment? If that’s the case, pretty much everything on the Congressional agenda should be thrown overboard, and the US Code given a good housecleaning. The latter I’d like anyway, but that’s neither here nor there.

There are many items of note INRE the DOJ brief, filed July 6th, that seems chaotic and disorganized. First, it may be worthy of pointing out that the DOJ brief is using almost identical, point for point, arguments as the ACLU lawsuit, filed in the same District court on May 17th. Obviously, either the DOJ used the ACLU brief as a template, or consulted with the ACLU attorneys when constructing their own complaint.

Obama’s attorneys’ confined their “cause of action” to three main arguments: The Supremacy Clause, the related Federal Preemption to supremacy power, and the Commerce Clause.

The Obama admin has, once again, stepped into the 10th Amendment powers arena. First it was with O’healthcare…. a huge entitlement program and budget killer that was shuffled thru Congress by the most questionable legal and quasi-moral methods via budget reconciliation. Not since the Civil War has so many states of the Republic (with 20 states on board as of May 14th) banded together to sue the federal government for overstepping their 10th Amendment boundaries and creating unfounded mandates.

Needless to say that Obama wants to take this approach, he’s going to be very busy with 10 more states looking to follow in AZ’s footsteps.

Now, citing federal supremacy, Obama’s admin argues that the feds, and the feds alone, retain the right to policy and enforcement of immigration law. They erroneously insist that the AZ law – which is either identical to, or lesser in penalties than, federal immigration law – is usurping the federal power. Or, to use the DOJ’s exact words, Arizona is:

“… supplanting the federal government’s immigration regime with its own state-specific immigration policy – a policy that, in purpose and effect, interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws and disrupts the balance actually established by the federal government.”

Remember that quote… we’re coming back to that “numerous interests” and “balance” in short order.

Arizona is not arguing that immigration enforcement lies primarily with the federal agencies. However those federal agencies depend upon authorized and trained local law enforcement to aid in that task. And to that end, AZ law is explicit in just what law enforcement officers may be involved in determining an immigrant’s status.

Again, from the AZ text, 11-1051 (E) 1 & 2:

E. IN THE IMPLEMENTATION OF THIS SECTION, AN ALIEN’S IMMIGRATION STATUS MAY BE DETERMINED BY:

1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN’S IMMIGRATION STATUS.

2. THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION PURSUANT TO 8 UNITED STATES 20 CODE SECTION 1373(c).

In addition to only officers granted authority by federal law to verify alien status, any detainee is taken not to local holding tanks, but to federal facilities. In short, AZ is not “enforcing” immigration in any way they are not already authorized to do. The best the fed attorneys can do is argue that states have no ability to enact laws that have effect on immigrants. Good luck with that one…. When, back in 2006, states and counties began abandoning their blind eyes to illegals, and stepping up their law enforcment, the Bush DOJ didn’t file a lawsuit, claiming absolute supremacy and illegal state activities that interfered with federal authority. And Bush’s immigration policy – a path to citizenship – isn’t all that far apart from that of the temporary occupant of our WH.

The Obama/DOJ Supremacy argument includes it’s opposition to attrition as a means of immigration enforcement. Yet how is Obama’s shake down audits, noted above, much different than attrition? By cracking down on employers, you are drying up the job market for immigrants crossing the border illegally. Threatening no jobs as a deterrent is no less attrition than threatening enforcement of our laws. Except that the big spending feds are getting money from fines if they only assail the employers, possibly over and over, where they get none by enforcing our laws. And if one wants to examine the effectiveness of even a threat to enforce immigration laws, one only needs to note that that those present illegally are, predictably, packing up and going home.

But the DOJ argument that is mostly likely to raise the eyebrows of the robed ones on the High Court is the oft-mentioned option of using “discretion” when enforcing immigration law…. either by the feds, or their authorized state/local officers. Twelve times in the complaint, the DOJ asserts it’s right to waive enforcement of US laws.

The INA also vests the executive branch with considerable discretion in enforcing the provisions of the federal immigration laws, generally allowing federal agencies to ultimately decide whether particular immigration remedies are appropriate in individual cases.

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In exercising its significant enforcement discretion, the federal government prioritizes for arrest, detention, prosecution, and removal those aliens who pose a danger to national security or a risk to public safety.

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Congress vested substantial discretion in the President and the administering federal agencies to adjust the balance of these multiple interests as appropriate – both globally and in individual cases.

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However, in the exercise of discretion, the administering agencies may decide not to apply a specific sanction and may, among other steps, permit the alien to depart the country voluntarily at his or her own expense and may even decide not to pursue removal of the alien if deferred federal enforcement will help pursue some other goal of the immigration system

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8 U.S.C. § 1227(a)(1)(E)(iii) (providing discretion to waive ground of deportability “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest” for aliens who are otherwise deportable for encouraging unlawful entry of an immediate family member); 8 U.S.C. § 1229b (granting the Attorney General discretion to cancel removal for certain
aliens).

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In light of these statutory provisions, DHS and DOJ exercise discretion with
respect to, among other things, whether to allow an unlawfully present alien to voluntarily depart, whether to place an alien into removal proceedings, whether to exact criminal sanctions on an alien who has committed an immigration violation, whether to allow an unlawfully present alien to remain in the country without physical detention, and whether to grant an alien humanitarian or some other form of relief. Decisions to forego removal or criminal penalties result not only from resource constraints, but also from affirmative policy
considerations – including humanitarian and foreign policy interests – established by Congress and balanced by the executive branch.

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By pursuing attrition and ignoring every other objective embodied in the federal immigration system (including the federal government’s prioritization of the removal of dangerous aliens), S.B. 1070 conflicts with and otherwise stands as an obstacle to Congress’s demand that federal immigration policy accommodate the competing interests of immigration control, national security and public safety, humanitarian concerns, and foreign relations – a balance implemented through the policies of the President and various executive officers with the discretion to enforce the federal immigration laws.

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Numerous other states are contemplating passing legislation similar to S.B. 1070.
The development of various conflicting state immigration enforcement policies would result in further and significant damage to (1) U.S. foreign relations, (2) the United States’ ability to fairly and consistently enforce the federal immigration laws and provide immigration related humanitarian relief, and (3) the United States’ ability to exercise the discretion vested in the executive branch under the INA, and would result in the non-uniform treatment of aliens across the United States.

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Whereas Arizona police (like federal officers and police in other states) formerly had the discretion to decide whether to verify immigration status during the course of a lawful stop, the combination of the verification requirement and the threat of private lawsuits now removes such discretion and mandates verification.

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In particular, Sections 1-6 conflict with federal law and foreign policy, disregard federal policies, interfere with federal enforcement priorities in areas committed to the discretion of plaintiff United States, and otherwise impede the accomplishment and execution of the full purposes and objectives of federal law and foreign policy.

In short, a bulk of this brief is dedicated to the “numerous interests” that revolve around Obama’s admin’s right to ignore enforcement of our laws, ironically by the very agencies charged with that enforcement. At what point do the Supremes decide that such “discretion” borderlines on dereliction of Constitutional duties? And if that “discretion” doesn’t actually constitute an application of our laws not being applied equally?

Again, like O’healthcare, the overly broad interpretations of the Commerce Clause power are evoked by this administration. Unless we want to assume that the Obama admin wants the drug and human trafficking trade to continue, uninhibited, we’re left with interpreting their broad scope “commerce” argument as it relates trade with foreign nations.

The complaint wants to insure that visiting trade partners aren’t unduly harassed about their status. Now how would that happen with the Arizona law? Our Department of State requires, and has a variety of, visas that are required by most all who enter this country.

There are some nations that are designated as part of our Visa Waiver Program. Even being privileged under this VWP program requires the alien entering to have a valid passport, and an ESTA (Electronic System for Travel Authorization ) approval.

In other words, any commerce traveler from a foreign nation is on record as to the duration of the visit that can be verified by any federally authorized officer.

What’s also interesting is that the Department of State also has documentation requirements for our border nations – Canada, Mexico and Bermuda.

Visa Requirements – Citizens of Mexico, and Permanent Residents

Citizens and permanent residents of Mexico generally must have a nonimmigrant visa or Border Crossing Card (also known as a “Laser Visa”).For ease of travel, the B1/B2 and the Border Crossing Card have been combined into one biometric and machine readable document (form DSP-150). Select Border Crossing Card to learn more about this card.

The reality is, anyone here legally has some sort of documentation or record of their presence. They are not in jeopardy of indiscretionary deportation by Arizona officials because 1: no AZ official deport illegal aliens. They are ushered to the nearest federal facility for processing as appropriate, 2: only those authorized by the feds can commence deportation proceedings, and 3: The POTUS, DOJ and other federal agencies still retain their “discretionary” power to ignore immigration laws in the process.

So what’s the problem?

I’ve spent some time comparing the AZ law to the US Code, reading the briefs, sifting thru SCOTUS opinions, etal. While pundits and constitutional legal eagles give lots of lip service about a mysterious SCOTUS decision that seems to relate to immigration and states rights, there is a glaring void in SCOTUS citations in the DOJ complaint that lends any credibility to their argument. Their lone citation, Knauff v. Shaughnessy in 1950, was for the sole purpose in cherry picking the phrase stating that immigration control and management was, “.. “a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.” Again, another sidle movement to the argument they maintain the authority *not* enforce our immigration laws.

AZ law does not usurp that power. But it will force them to address a particular alien’s status, and his/her qualification for any “discretion” they wish to bestow. However if Washington State is any indication, they’ll just make sure the illegal immigrant is jobless, but not deported. Boy… that’s an improvement.

Frankly, IMHO, Obama and his attorney minions have themselves a serious uphill battle on this one. And perhaps the nail in that coffin for Obama is yet another old argument where they are derelict in presenting their case… “irreparable harm”. Section II of the DOJ’s supporting brief states:

THE UNITED STATES WILL SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION

The DOJ arrogantly states on the “likelihood of success on the merits” of their case, every day the injunction is not granted to stop implementation of AZ’s law is going to cause “irreparable harm” to the nation.

Uh… would that be similar to the “irreparable harm” they failed to prove in the oil drilling moratorium? An argument that even the very liberal 5th Circuit Court of Appeals couldn’t swallow?

Their “irreparable harm” is a regurgitation of the same ol’, same ol’…. It will interfere with their ability to waive enforcement (untrue), make foreign policy difficult because it pisses Mexico off and garnishes tsk tsk’s from around the globe (isn’t the first time we’ve been tsk tsk’ed…), and that it will overload the Dept of Homeland Security. (hey, I hear there’s a lot of unemployed census workers….).

It seems the Obama attorneys are virtually a group of single trick monkeys, and not very adept ones at that. They’ve got a serious addiction to power, freely exploiting both the Commerce Clause and that “irreparable harm” threat if they don’t get their way.

I’m going to go out on a limb here, and suggest that Obama’s about to get his third strike at the bottom of “the 5th”. The courts first slapped him down when he tried to close Yucca Mountain on his own, without Congressional authority, His second strike was injunction rejection on the drilling moratorium based on “their merits” of “irreparable harm”, and AZ could just well be the third strike out in this particular political inning.

Nothing could make me happier than to declare, Obama… you’re out! And then, it’s put on my cheerleader outfit for the ignored 20 state challenges to O’healthcare.

On a closing note, I’d like to announce this is my last blog post for Curt and Flopping Aces. After weighing many personal considerations, time constraints, and projects left undone for too long, I’ve decided to hang up my blogging hat for a while. I’d like to thank those of you who have read my rantings, dissertations, and research posts… and for your comments (yes, both pro and con). I wish you all well… and see you at the polls.