Monday, October 17, 2011

The Problem With Piecemeal Amnesty by Administrative Degree

The Obama Administration recently issued an administrative decree that would review the cases of and suspend the deportation of many, "low priority" violators of immigration laws, i.e. those not considered violent or dangerous. At least on an emotional level, this is positive, because it is heart wrenching to see an individual who unwittingly came to the US as a child face deportation after a routine traffic stop. And it does seem wise to prioritize on the arrest and deportation of dangerous offenders. But, for a host of other reasons which we will consider, this policy shift is quite problematic.

First, although there are arguments that can be made on behalf of an amnesty, it should be achieved openly through the legislative process, not by executive fiat, not by piecemeal administrative degrees. I suspect that the Obama Administration is taking this route because he knows that if such policies were subject to the vote, they would never get passed. Second, no matter how noble the purpose of this administrative decree may be, its aim is not to clarify the execution of the law, but to negate it's intended purpose.

Second, in many cases this will amount to the executive branch overriding the authority of the judicial branch. Although a judge generally has the authority to take an individual's record into account when passing sentence, I do not believe that the executive branch has the authority to mandate this. And to entirely spare a violator of law A from punishment because he did not violate law B and C, at least in this case seems to be more driven by political consideration, not by good jurisprudence. For example, I cannot imagine a judge, in good conscience not punishing a violator of a criminal, civil or regulatory code, because they had not committed other, more serious crimes. In this case, I highly suspect that this is flawed effort by the Obama Administration to shore up its faltering support among Latino Voters, while not alienating other demographic groups.

Last, but not least, the biggest problem with de facto administrative amnesty is that it leaves millions of undocumented immigrants in a legal limbo. Rule of law and common sense dictates that their status must be either be resolved either through a full, de jure amnesty, or the law must be unconditionally carried out, which in most cases would mean deportation. And in the end offering empty pronouncements that raise hope in millions of desperate people is a cruel and cheap political tactic. Mr. Obama, it's time for you to either "step out of the administrative shadows" and seek to change the law, by submitting a comprehensive immigration reform bill to the senate or to shut up and start enforcing the letter and spirit of the law.

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