In my last blog on the "Strengthen and Fortify Enforcement (SAFE) Act", an immigration bill pending in the House of Representatives as H.R.2278, I discussed the terrorism and national security provisions in Title II of the draft legislation.
In the context of national security, I stated my view that, in and of itself, neither the SAFE Act nor indeed any legislation could change the fundamental indifference exhibited by DHS leaders where the nexus of immigration and homeland security is concerned, but that the bill would make it increasingly difficult for executive branch officials to circumvent the law in ways that permit aliens to take advantage of our immigration and naturalization laws.
The bill does the same thing in the more general context of immigration law enforcement as well, and that is a welcome development.
Section 605 of the SAFE Act requires both the Attorney General and the Secretary of Homeland Security to report to the Congress, within 180 days of the end of each federal fiscal year, detailed statistical and individual information regarding all aliens:
- Arrested by state and local police and previously identified by DHS officials as inadmissible or deportable but who were not detained when identified;
- Applying for admission to the United States and not clearly entitled to enter, but whom DHS officers did not detain as required when arriving at ports of entry;
- Identified by adjudicating officers when applying for benefits they did not receive because they were inadmissible or deportable, but who were not then processed for removal proceedings or otherwise expelled; and
- Served notice to appear in removal proceedings that were thereafter canceled by government trial attorneys, or terminated by immigration judges without completion of the hearing, despite the aliens being inadmissible or deportable.
The focus of this provision of the bill is clear from its title: "Reports to Congress on the Exercise and Abuse of Prosecutorial Discretion". It is a reaction to this administration unilaterally adopting a constitutionally questionable policy of mass "prosecutorial discretion" in which thousands of cases were flushed from the immigration courts without a hearing (or simply not initiated to begin with), and in enacting the administrative equivalent of a "Dream Act" after it failed to pass Congress. (For more on these actions, see "Lawsuit Documents Criminal Alien Releases, Decline in Enforcement, Cooked Statistics" and "DACA: Prosecutorial Discretion ... or Egregious Abuse of Discretion?")
Those of you who embraced the administration's actions will probably react viscerally and negatively to this provision in the SAFE Act. That is because you made the calculated judgment that the ends, which were highly desirable in your view, justified the means.
But when the great pendulum of American presidential politics swings, as it always does, and the White House is occupied by a man or woman you do not admire or support, and whose views are diametrically opposed to yours, will you be so happy that a precedent has been set in which a president and his, or her, cabinet feel free to engage in exercises of "executive lawmaking" — whether in the immigration arena or any other — when they cannot persuade Congress to act? Probably not. Especially not if you dislike the ends those means are meant to accomplish. Think long and hard, then, about how vocal you are in your opposition to a piece of legislation that restores the constitutionally mandated separation of powers.