Look at it this way: Not only was it never going to pass Congress, passage wasn’t really the point. The point was to give Cruz some extra border-hawk cred for the 2016 primaries. Now, when he smacks Rubio at the debates for backing the Gang of Eight bill, he can contrast it with his own attempt to cut off the executive amnesty that’s drawing young illegals here in the first place. The bill doesn’t need to pass for Cruz to be able to do that.
Some Republicans worry that Cruz’s bill, in this context at least, is a political loser. “Doing so in the midst of the current crisis could look like an overreach, particularly given how the mainstream media will distort it,” a House Republican leadership aide tells National Review Online. “We’re still waiting to hear from the Border Working Group, and nothing has been ruled in or out. Also, it’s certainly possible to deal with that issue legislatively at another time.”
Senate majority leader Harry Reid (D., Nev.) kicked off the morning by accusing Cruz of trying to deport children who are “legitimately” in the country.
“Before Republicans help our Border Patrol agents and all the personnel that’s trying to do something to handle this humanitarian crisis, they want President Obama to deport the DREAMers who are already here, legitimately here,” Reid said. “These are children. But instead of considering a thoughtful, compassionate solution to a real-life crisis on our border, radical Republicans are trying to hold these kids ransom.”
The GOP’s worried that the media will follow Reid’s lead and accuse Cruz of wanting to send all young illegals home, even the ones who’ve been here for years. Cruz’s office knew that attack would be coming, which is why they reached out yesterday to stress that his bill would merely cut off eligibility for Obama’s 2012 amnesty to future illegals, not rescind it for those already covered by the program. Behold the power of leftist demagoguery, aided and abetted by the media: Even though Cruz watered down his anti-amnesty bill to make it harder for Democrats to accuse him of cruelty, House Republicans aren’t willing to bet that he can get the truth out over the din of liberal lies. After watching Pelosi and the press mangle the Hobby Lobby ruling to serve the left’s “war on women” narrative, who can blame them?
Meanwhile, the House’s “working group” on the border crisis has finalized its “set of principles” for a bill, the highlight of which is that illegal immigrant children should remain in HHS’s custody until they see an immigration judge. That would, in theory, prevent kids from disappearing into the U.S. before a deportation order can be served on them. Needless to say, Democrats will never agree to it, because Democrats don’t believe in enforcing the border. What’s the alternative, then? There’s always the Cornyn/Cueller bill that would authorize HHS to deport kids from Central America more expeditiously, but Mark Krikorian’s Center for Immigration Studies argues that the actual text of the bill is a disaster. Specifically, it appears to say that a deportation hearing can’t be held if the immigrant isn’t present unless both sides consent to it; that means kids who flee before their hearing could never have an order of deportation issue against them. It also seems to grant immigration judges the power to grant kids resident alien status in lieu of deportation. It’s a nonstarter.
What’s the other alternative, then? Via Conn Carroll, Krikorian’s outfit has looked at the 2008 child trafficking law and thinks there may be a loophole in the statute that would let Obama speed up deportations even without any new action by Congress:
The law requires “[e]xcept in the case of exceptional circumstances” that any department or agency of the federal government that has an unaccompanied alien child in custody to transfer the custody of such child to the HHS secretary within 72 hours after determining that such child is, in fact, an unaccompanied alien child. It is unclear what would count as “exceptional circumstances”, but perhaps a massive surge in illegal immigration could be taken into account. In fact, Sen. Dianne Feinstein (D-Calif.) recently told DHS Secretary Jeh Johnson at a Senate hearing that the “exceptional circumstances” provision in the 2008 act would allow President Obama discretion in how the law is applied in light of the influx of illegal immigration.14 The senator suggested that amending the law was unnecessary.
Like Conn says, executive action here would be different from Obama’s standard executive power grabs because the statute passed by Congress specifically authorizes it. Obama could, if he wanted to, declare that the border crisis is an “exceptional circumstance” and order summary deportations of kids coming across the border in lieu of handing them over to HHS. That sort of bold executive option is right up his alley on most days — yet, curiously, he’s refused to exploit the loophole in this case. Anyone want to float a theory as to why?
By the way, Cruz will be with Glenn Beck at the border this weekend helping to deliver humanitarian aid. Not even that is enough to assuage GOP fears of lefties accusing him of hating the kids.