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A new enforcement memo handed down by the director of U.S. Immigration and Customs Enforcement last week has some accusing the White House of running around Congress to implement the DREAM Act – and consequent amnesty for some illegal immigrants – by executive fiat.

The new memo, penned by ICE Director John Morton, directs ICE agents, attorneys and directors to exercise “prosecutorial discretion” – meaning less likelihood of deportation – for illegal aliens who have been students in the U.S., who have been in the country since childhood or who have served in the American military.

Critics have pointed out the new leniency standards parallel the provisions of the Development, Relief and Education for Alien Minors Act, or DREAM Act, which could not pass the Senate, despite several votes over the past decade, including three failed attempts at passage last year.

“This is outright lawlessness on the part of the administration,” argued syndicated columnist Charles Krauthammer on a discussion panel with Fox News’ anchor Chris Wallace. “Whatever the politics of this, we do have a Constitution. And under it, the Legislature, the Congress enacts the laws and the executive executes them. It doesn’t make them up.

“The DREAM Act was rejected by Congress,” Krauthammer continued. “It is now being enacted by the executive, despite the express will of the Congress. That is lawless. It may not be an explicit executive order; it’s an implicit one.”

Other guests on Wallace’s program admitted that President Obama has been under pressure from Hispanic lobbyists to do what Krauthammer is accusing: an end run around Congress.

“Immigration-rights activists have been pressing the president to do exactly this, because they couldn’t get the DREAM Act enacted,” commented Nina Easton of Fortune Magazine. “They have been saying, ‘Let’s do it administratively.’ He has done the same thing on labor issues, union issues, by the way.”

Mara Liasson of National Public Radio added, “That’s exactly what the president has promised to do. Latino activists were asking him to issue an executive order to make the DREAM Act a law. That would truly be an end run around Congress. And he said he doesn’t have the power to do that.

“What he does have is prosecutorial discretion,” Liasson continued. “That’s existed long before he came in office. And what ICE did today was it said, ‘Here are all the factors that you can take into consideration.’”

Specifically, the memo argues, “Because the agency is confronted with more violations than its resources can address, the agency must regularly exercise prosecutorial discretion.”

Therefore, it states, priority in prosecution should be given to “felons,” “gang members” and “repeat offenders.”

But other determinants are listed “positive factors [that] should prompt particular care and consideration,” namely if the illegal immigrant is a veteran of the U.S. armed forces, present in the U.S. since childhood, pregnant, a victim of violent crime or suffering from serious health conditions.

In addition, the memo states, “When weighing whether an exercise of prosecutorial discretion may be warranted for a given alien, ICE officers, agents and attorneys should consider all relevant factors, including, but not limited to:

  • The person’s length of presence in the United States;
  • The circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
  • The person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States.”

The DREAM Act would similarly grant children in the country illegally the opportunity to become U.S. citizens if they attend college or enlist in the military.

Though the Nancy Pelosi-led U.S. House of Representatives passed the DREAM Act during the “lame duck” session after last year’s election, the U.S. Senate has repeatedly failed to clear the 60-vote threshold necessary to bring it up for vote over Republican filibusters.

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