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If anyone had any doubt about President Obama’s lack of respect for the Constitution, the separation of powers or the rule of law, Homeland Security Secretary Janet Napolitano dispelled that doubt on Aug. 18.
Napolitano has announced rather cavalierly that her department will no longer enforce the nation’s immigration laws. According to White House spokesperson Cecilia Munoz, our immigration laws will henceforth be enforced “in a smart and effective manner.” Reading the fine print, this translates into deporting only illegal aliens who commit “serious crimes,” and all others will get the benefits of “prosecutorial discretion.” This amounts to amnesty by White House decree, not by act of Congress.
Over 300,000 existing deportation orders will be disregarded by the agents of the Immigration and Customs Enforcement (ICE) agency, and millions of future cases will never get that far. But, oh, wait – don’t panic. This benefit of “prosecutorial discretion” will be applied only “on a case by case basis.” This dishonest disclaimer comes from the mouth of the same person who continues to assert that “the border is more secure than ever.” It’s the public official we trust to guard our nation’s homeland security.
The public has been misled by the White House to believe that this is a simple matter of establishing “law enforcement priorities.” Even Fox News mischaracterized the decree in an online poll question: “Do you agree that violent criminals should be deported first?” Well, sorry to break the news to Fox, but that’s not what the new policy does. The seven-page memo from DHS Assistant Secretary for Immigration and Customs Enforcement John Morton says something quite different. Only serious criminals will be deported, and all others will get a pass.
The really bad news is that a divided Congress will probably do nothing to reverse this usurpation of congressional authority and dangerous expansion of rule by decree. The good news is that states can act to protect their citizens from this monstrous abuse of power.
What point is there in “immigration reform” if Obama can unilaterally decide not to enforce laws he doesn’t like? But states can still enforce state laws, and they can also augment the enforcement of federal law. Who says so? The US Supreme Court, that’s who.
The court’s recent Whiting v. U.S. Chamber of Commerce decision has given states a green light to legislate against illegal immigration in the area of employment sanctions. The U.S. Chamber of Commerce sued in federal court to invalidate a 2005 Arizona statute, and the Supreme Court upheld Arizona’s authority. A more recent Arizona law, SB 1070, is still on appeal, but it has nothing to do with sanctions against employers. The path is clear for states to enact laws mandating compliance with existing federal law against hiring illegal aliens and to impose state penalties on employers who knowingly violate that federal law.
The Obama administrative amnesty makes the Whiting decision even more important. The top court in the nation has told states they have a constitutional right to legislate in this area. Employment is the “magnet” that attracts illegal aliens in the first place. While states cannot reverse Obama’s decree, they can effectively neutralize its practical effects.
The Arizona experience with the Legal Arizona Workers Act shows that when states act to turn off the jobs magnet, illegal aliens leave and go elsewhere. If enough states enact tough laws to protect the jobs of American workers, most illegal aliens will “self-deport” and go home voluntarily.
Thus, politically, we have come full circle in the national debate over what to do about illegal immigration. Obama’s administrative amnesty shows the whole world that seeking a federal solution in Congress is futile as long as Obama sits in the White House. The only recourse now is state legislation.
State-level enactment of mandatory E-Verify laws and tough sanctions against employment of illegal aliens is the best way – indeed, in the short term, the only way – to obstruct and neutralize Obama’s unilateral, administrative amnesty.
The Obama amnesty ought to be the provocation for a national citizens’ movement to institute mandatory E-Verify laws in every state. Over 20 states besides Arizona allow initiative ballot measures, and several states have passed strict anti-illegal immigration laws through the legislature. It’s time for dozens of states to initiate such legislation, and there must be a national, coordinated effort to assist states in doing so.