Thursday, November 20, 2014

Obama's Amnesty:
A Guide For The Perplexed
(Part I, pre-speech)

We are in for interesting times.

So let me explain from what I can glean so far what is going on.

(Note to the reader: to those unfamiliar with this blog, I should mention that I'm an immigration attorney of eleven years' standing, and before that I worked in DC for almost two decades. I know where the bodies are buried in this business.)

So. Here's my analysis.

As you know, our President, hallowed be his name, has--in spite of the raspberry given him by the electorate in last week's election--he has decided that the time has come to take the gloves off as regards amnesty.

And he's not doing it in some small mean way, either.

Yep, the President is going all-out. Going large--very large.

Chris Christie large. Jerrold Nadler large. Khloé Kardashian's butt large.

We're talkin' huge here.

With the waive of a magic wand, he is granting amnesty to four million people or thereabouts.


Is this the end of the world as we know it????


Probably not.

A lot of Republicans are completely outraged in principle, and they're not insane for being so. But many of my fellow GOPers have been acting like Aunt Pittypat with the vapors all week since Fox announced it had gotten a copy of the plan on Monday.

But. Everyone has been asking: What's Obama up to exactly?
I have been able to piece together a few points of the President's "Ten Point Plan," as described last week by Fox, which claimed to have gotten a copy of the plan.
From what I've been able to cobble from the Interwebs, the plan consists of at least the following:
*   Expanded "Dream Act" relief. Short version: more kids and young immigrants get work cards, then Social Security cards, and possibly drivers' licenses--including many who didn't qualify for the first "Dream Act" relief.
(Long version: grants more relief under the Deferred Action for Childhood Arrivals (DACA, or "Dream Act") program so that children that arrived AFTER the DACA deadline of June 2012 will also qualify for 'Deferred Enforced Departure' (DED), like the first bunch. DED lets you stay in the US with a work card, Social Security number, and driver's license, for the duration of the presidency of the President who grants it.)
* A second, new program that protects the parents of American citizen or green-card holding children who are 'living with them' qualifies for a program that parallels DACA. They get DED also.
* A third, new program that will shield those who have been "in the United States a very long time" (ten years? Five years?) even if they have no children here. They too will get DED.
*  A fourth new program that will somehow shield some 250,000 agricultural workers from deportation. Don't know the details, but the head of the United Farm Workers spoke of it to the press last night.
*  A hefty executive-mandated pay raise for ICE (and USCIS?) for "morale purposes." (Read: Consolation prize. It really, really sucks to work for ICE right now.)
That's five of the points. That leaves five more points. Your guess is probably as good as mine, but let me crystal-ball gaze for a minute. I will be perfectly willing to bet that it includes:
* Expanding the "I-601A Waiver" program.  Short version: makes it easier for someone deported, or about to be deported, to return if they're married or have citizen kids.
(Longer version: This is complicated so hear me out.  When someone gets deported and their family wants to bring them back, they're generally barred entry to the US for ten years. The family can get the bar lifted by filing something called I-601 and I-212 forms.... but they can't file it until AFTER (a) the person is deported and (b) the person has first been interviewed at the US Embassy. Costs about $1200 plus legal fees, which are high.
The present state of the law means someone deported, even if he has three autistic citizen children in the US or a wife with cancer, cannot reenter the US for at LEAST two to three years--that being how long it takes to process the papers. The I-601A waiver allows some (very few) individuals to file BEFORE they leave the US. This shortens their stay at home to a week or ten days. If they get it. It's VERY hard to qualify for. My guess  is that Obama is going to expand the I-601A program.)
* Reorganizing the immigration office--US CIS--so that its workers can spend more time processing papers and less time going to mind-control political correctness seminars.
* Further computerization of the paperwork process. Details well known to immigration lawyers but rightfully of no interest to anyone else.
As for the other points, your guess is as good as mine at this point.

But. Is Deferred Action by the President, um, legal?  Is it constitutional?

Is it impeachable???

To which I answer, yes, probably yes, and very probably no.
First, we need to face facts. Conservatives may well hate this thing, but it is probably not unconstitutional or even, on its face, illegal. The authority to do this is inherent in the President's (or Homeland Security's) authority to grant DED to those individual groups deemed to need protection.

The Federalist Society, a VERY influential and relatively hard conservative organization in DC--just happened to have its annual legal convention last night at the Mayflower Hotel in DC. A panel there led by names well known to me found the President's actions "unprecedented," "troublesome," but not repeat not unconstitutional on its face.

If this is an accurate description of the discussion--if, I say, after all the source is the Huffington Post--then those screaming about the unconstitutionality of this move may be all wet.  And believe me, if there was something obviously unconstitutional about it the Federalist Society, no spotted-owl-fan-club, would have found it.

Their argument: the President does indeed have wide powers of discretion in this matter and past presidents have exercised that power to a lesser degree. Since the solution that Obama offers is in the end objectionable, not constitutionally, but as a matter of policy, then the matter can and should survive court challenges.  The difference here is not of kind but of degree.

I have no doubt that it will survive challenge when it eventually reaches The Supreme Kennedy. (I  call him that because Justice Kennedy is the deciding vote on an otherwise-split 4-4 Supreme Court, and there's no doubt in my mind on this one he'll veer left.)

If the Federalist Society can hold its nose on this thing, it will--probably--survive legal challenges.

Add to that also: the Chamber of Commerce wants this. Which means that a lot of Republicans will do a smoke-and-mirrors kabuki dance without actually doing anything effective to stop it.

Let me tell you what it does not do. It does not grant "a blanket amnesty" to all and sundry.  Not everyone who is here illegally will qualify for this benefit. It leaves out another ten to twenty million people. Those convicted of significant crimes (worse than driving without a license or drunk driving) are out of luck. And those who have been here too short a time, certainly less than five years, possibly less than ten, will not qualify for anything. 

Upshot: From a conservative standpoint, it stinks. But it's not per se either unconstitutional nor illegal.

But can it be undone? Technically, yes. Politically? Um, we don't know.

(Is it impeachable? Answer: Don't be silly. The GOP is not going to risk ten years of Joe Biden. Next question?)

We're not going to shut down the government again. Last time we tried it -- last year -- we got a black eye and accomplished nothing but getting a video of Senator Cruz reading a children's book on the floor of the Senate. Forget it. Won't happen.

But as for the effects? The Corroding Effect On The Constitution? Yes, yes, I know it will Lead To The Decline of America Because Mexicans. Shrug. They said that after Brown v. Board in '54 also. Republicans need to be very careful how they oppose this thing; they don't want to hand the Democrats the racism club. Again.

Just remember that this affects five million people. Out of 320 million. We can survive this, quite well, thank you. And as for what they'll do to the job market? Just a hint, here: the ones that can work are working already.

Let me note again: we let most of these people come here. We didn't guard the border. Why? Because we didn't reproduce ourselves. If it weren't for Roe v. Wade, twenty-five million workers between the ages of 41 to 18 would now be in the work force. They're not because dead. They needed to be replaced. Well, we replaced them.... with illegal aliens.  And there are only two things to do: assimilate them, or persecute them till they leave. And we're not going to persecute them. Sorry.

They are not here to do the work Americans won't do. They're here to do the work Americans can't do because they're dead.

And now, the bill is due.

I'll write more after tonight's speech.

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Keep it clean for gene.