The Lawless Immigration Policy of the Obama Administration

By James H. Walsh
Volume 23, Number 1 (Fall 2012)
Issue theme: "Victims of Immigration"

President Barack Obama, in his campaign of hope and change, is managing to circumvent the Legislative Branch of the U.S. Government. In so doing, he disrespects both the U.S. Senate and the U.S. House of Representatives. To block a Republican version of the DREAM Act (Development, Education, and Relief for Alien Minors) being drafted by Senator Marco Rubio (R-FL), the President announced by decree what amounts to lawless amnesty for young illegal aliens up to 30 years of age. Increasingly the Obama administration has taken to governing by decree.

The President, by combining charismatic oratory, news media-hyped intellectual acumen, appeals to minorities, attacks on Republican leaders, and an ultra-liberal stance, means to win re-election. The common thread of his appeal is a populist image pitting evil entrepreneurs against the middle class. All the while, he attempts to cloak his distribution-of-wealth, socialist bent in pleasant, everyman charm.

Yet his heavy-on-rhetoric governing style has failed to deal competently with the BP oil spill in the Gulf of Mexico, with bankrupting fiscal deficit, with staggering unemployment, and with Mexican drug cartels and their henchmen crisscrossing the Southern Border.

On the bright side, for the President at least, the U.S. Supreme Court, in a convoluted opinion with a scathing dissent, upheld the Affordable Care Act (ACA), better known as Obamacare. The High Court found unconstitutional the “individual mandate” that would have required those persons failing to purchase health insurance to pay an annual “penalty.” Rather than finding the law unconstitutional in part, unconstitutional in all, the Supreme Court of the United States replaced the unconstitutional “penalty” with a constitutional “tax.” This troublesome example of judicial activism may well turn out to be a pyrrhic victory for Obama and the Democrats.

Meanwhile the Obama re-election campaign strategy depends on him keeping the minority vote that he received in 2008, with 96 percent of the black vote and 74 percent of the Hispanic vote. He can count on maintaining the black vote, but the Hispanic turnout could be problematic. The Hispanic attraction to Obama was based on his support of Comprehensive Immigration Reform (CIR) with a pathway to citizenship for illegal aliens and their extended families. Even so, he failed to deliver on his campaign promises to Hispanic voters, and they may see his Rose Garden announcement of a temporary delayed deportation of young aliens brought into the country illegally by their parents, as too little too late.

On June 19, 2009, President Obama made a short but decisive statement on Comprehensive Immigration Reform. Speaking to the Esperanza National Hispanic Prayer Breakfast and Conference, the President repeated his commitment to CIR in a re-affirmation of his unfulfilled campaign promise. Obama is now promising Hispanics and other immigrant groups CIR in the first year of his second term.

The Obama administration realizes that the American people, as a whole, have concerns about border control and illegal alien crossings, the number of illegal aliens entering even with “enhanced “ border security, and economic slow-down in the United States. Recent polls of Hispanics residing in the United States rank jobs, fiscal stability, education, and health care ahead of immigration, which came in a distant fifth in the polling.

Implicit in the now constitutional Obama healthcare program are health services for illegal aliens, in addition to their current emergency-room treatment. Obamacare services may be enhanced by amnesty or legalized residence or Executive Order or via the Supreme Court decision in a 1982 case, Plyer v. Doe, which held that educational benefits for the general public could not exclude illegal aliens.

In June 2009, U.S. Attorney General Eric Holder, in effect, changed current U.S. immigration law by granting illegal aliens who face deportation an added ground for further appeal and delay — now they can claim “poor legal representation.”

Prosecutorial discretion

On June 15, 2012, when President Obama delivered his Rose Garden announcement of “prosecutorial discretion” in dealing with illegal alien youth, it was nothing new. On June 17, 2011, U.S. Immigration and Customs Enforcement (ICE) Director John Morton had issued a Memorandum instructing U.S. Department of Homeland Security (DHS) officials to exercise “prosecutorial discretion” to reduce deportations of illegal aliens.

Then just hours before the Rose Garden announcement, DHS Secretary Janet Napolitano put the wheels in motion by instructing DHS officials to exercise “prosecutorial discretion” in dealing with illegal alien “youths” up to 30 years of age, if they met a low-level, qualifying standard.

The President followed up with his ceremoniously announced a “prosecutorial discretion” ban on deportation actions involving illegal alien young people, legitimizing for a 2-year period (through the election) “young” illegal aliens up to 30 years of age. When did eighteen stop being the legal age of majority? For years, the nation sought to lower the age of majority, but now suddenly the Obama administration is raising it to provide for 30-year-old “youths,” many of whom may have children and some even grandchildren. He then granted work permits to these aging “youths.” Too bad there aren’t more jobs and that African-American youth unemployment is at 40 percent — problems the Obama administration has yet to resolve. By calling for “prosecutorial discretion,” President Obama circumvented the U.S. Congress and aced out Senator Marco Rubio (R-FL) and his bipartisan legislative effort to lawfully provide cessation of deportation for illegal alien youths.

When the President cannot achieve change by Executive Order or Executive fiat, he uses his cabinet to do so or his numerous “czars” unconfirmed by Congress. The Obama czar mania creates a buffer against Presidential mistakes or disasters, but it is a two-edged sword. The czars detract from congressionally approved Cabinet officers, thus placing power solely in the White House.

Lawful vs. lawless immigration reform

Comprehensive Immigration Reform (CIR) with a pathway to citizenship is one of the crown jewels in Obama’s imperial plan for social change in American life. His hesitancy to seek lawful CIR through Congress may be linked to opinion polls that show 70 percent of U.S. citizens believe that illegal aliens should not be granted special status. They hold that “special status” is a disingenuous “carrot” to garner Hispanic votes (legal and illegal), year after year by Democrats. Obama and Congressional Democrats count on Hispanics blindly following their lead, even if they fail to produce legislative change.

In addition, many U.S. citizens have a nagging suspicion that not all foreign nationals in a rush for citizenship have the best interest of the United States at heart. Recent Islamic domestic terrorist arrests and convictions support this suspicion. Faisal Shahzad, a native of Pakistan naturalized as a U.S. citizen in 2009, was arrested and tried for attempting to set off a car bomb in Times Square in 2010. When questioned by the judge on how he could have planned such a terrorist act when he had so recently pledged allegiance to the United States of America, he replied, “I did swear, but I did not mean it.” The news media play down the number of arrests and convictions of both foreign-born and homegrown Islamic terrorists.

Another factor in the defeat of legislative attempts at Comprehensive Immigration Reform is the uncertainty of how many illegal aliens actually are in the United States. Watch this number rise exponentially, if and when illegal aliens are granted U.S. residency, thus qualifying them for family reunification, which allows family and extended family members to coat-tail in. Yet another factor is the under-educated status of many illegal aliens, which places them at the lower end of the economic ladder and creates an ever-increasing burden on U.S. social/welfare services. Recent surveys show that 70 percent of U.S. citizens view illegal aliens as abusers of educational, social, and welfare services and as a drain on the nation’s environmental resources.

The best guesstimate of annual costs to U.S. taxpayers for illegal aliens — whose estimated numbers range from 12 million to 36 million men, women, and children — for all services, including incarceration costs, are estimated at $132 billion per year. Health-care costs are estimated to make up 44 percent of this amount. The actual costs for illegal aliens under the Affordable Care Act (Obamacare) are uncertain to the point that the only sure projection is major tax increases for the middle class — notwithstanding the President’s assurances to the contrary.

Doctors, other health care providers, and state governors, are expressing their concern at the Obama administration’s willingness to alter health-care rules. Health care for illegal aliens is already provided in part by the 1986 Emergency Medical Treatment and Active Labor Act (EMTALA, 42 USC Section 1395dd). Under EMTALA, no person can go untreated by an emergency room (ER), regardless of citizenship. The result is that more than half of the costs now go unpaid, and hospitals in Border States are closing by the score. Because of the inability to identify the numbers of uninsured illegal aliens using ER facilities, except by total number of hospital closings and first-person accounts by hospital staff, a guesstimate puts the loss by U.S. hospitals in 2011 at $80.2 billion. The Kaiser Commission determined that hospitals were uncompensated in 2004 for care totaling $40.7 billion.

The U.S. Census Bureau estimates that one-fifth of the alleged 47 million uninsured in the United States are illegal aliens — which estimate has been challenged by state and local governments as under-reporting of illegal alien numbers. The Obama administration and surrogates in July 2012 claim upwards of 60 million uninsured persons. Current Census Bureau estimates are less than the 2009-2011 estimates of 12 million to 30 million illegal aliens in the country. Again there are no firm numbers, but the costs of health care would be greatly reduced, if illegal aliens were not counted among the uninsured. This is especially true, since Obamacare, which is for the time being the law of the land, allegedly does not cover illegal aliens. The unspoken truth is that federal, state, and local officials turn a blind eye toward persons of all ages applying for health care.

Illegal aliens of all ages currently have access to Medicaid, and many have legal U.S. identification, such as a driver’s license. Many also have access to false and fraudulent documents for use in obtaining employment and goods and services. Major cities throughout the world have high-grade forged and counterfeit U.S. documents available for a price. The Mexican drug cartels also excel in forged and fraudulent documents.

There is a need for immigration reform legislation. Should the President choose to address it, he will need to consider the current U.S. fiscal crisis in concert with foreign affairs. Part of the fiscal crisis is the negative impact that illegal aliens have on employment. Jobless rates are holding at 8.2 percent nationwide, with total unemployment estimated at 14.7 percent. Meanwhile estimates vary for foreign nationals in the United States illegally. Surveys by the Pew Research Center indicate that some illegal aliens are returning to their native lands and that illegal border crossings are down. These surveys fail to consider the hundreds of thousands of illegal aliens arriving each year and the millions of illegal aliens holding jobs, while unemployed U.S. citizens seek work. Now that Obamacare has been declared constitutional, it will serve as a draw for illegal migration, especially from Third-World countries.

U.S. Border Patrol figures for 2005 showed the number of apprehensions of illegal border-crossers at 1.2 million, with 94 percent of these occurring along the Southern Border. For two decades now, these yearly averages have remained constant, but they only count apprehensions — not those who cross the border undetected. A conservative estimate is that an average of three illegal crossers enter the country for every apprehension — for an average of 3.6 million illegal aliens entering the United States each year. In 2006-2010, with the economic slowdown in the United States, apprehensions of illegal border-crossers should have been down approximately 30 percent, if illegal border-crossers were coming for jobs. The apprehension numbers, however, have not declined, because illegal border-crossers are coming, not only for jobs, but for health, social, and welfare benefits.

In 2012, some U.S. Border Patrol agents suggest that the rate of illegal border-crossings is not down and that the figures are being massaged. Now when illegal border-crossers are caught, they are immediately sent back at the nearest port of entry—with no records maintained in cases where supervisors determine that “prosecutorial discretion” is to be exercised. Although figures don’t lie, figures can be manipulated. The number of illegal aliens entering the United States remains considerable –– contrary to what immigration advocates would have you believe. Although the draw of jobs still motivates illegal entry, a new twist has entitlements are becoming the main incentive. Illegal aliens entering the U.S. today understand that the Obama administration is reshaping social and welfare benefits to be citizenship-neutral, with no questions asked about the citizenship of applicants.

Back on July 12, 2010, Obama’s bi-partisan Debt Commission Co-chairman Erskine Bowles announced that current budget trends will destroy the country from within. “The debt is like a cancer,” said Bowles. Why does President Obama choose to ignore his own Debt Commission’s findings? His reasons perhaps can be found in his biography, Dreams from My Father, in which he wrote, “In 1983, I decided to become a community organizer.” He explained that he wanted to work in black communities, and that this was “a promise of redemption.” President Obama apparently continues to seek redemption by changing the American basic system of business, culture, demography, economics, governance, national defense, and social mores. Obama’s answer to immigration problems appears to be wait and see and do only what is required for re-election.

While immigration apparently is not high on the President’s priority list, it is part of his view of “redemption” and “hope” and “change” in the American Republic. For those U.S. citizens who do not seek redemption by redistribution of wealth, the goal remains a nation of laws––laws written to be obeyed by all, starting with the President of the United States. The coming election promises to be a pivotal one.

About the author

James H. Walsh, formerly an Associate General Counsel of the Immigration and Naturalization Service (INS) in the U.S. Department of Justice, writes immigration commentary. During his INS tenure, Walsh was selected as a German Marshall Fund Scholar, traveled through Europe interviewing immigration officials, and published articles based on his findings. At INS, he worked with other federal agencies and congressional committees on immigration matters. His assignments included consultations with foreign governments and international business concerns. He chaired a task force on Transit without Visa (TWOV), whose report identified weaknesses in pre-9/11 airport security. Walsh has a B.A. in history from Spring Hill College and a J.D. from Georgetown University Law Center.