At least some in the Department of Homeland Security have begun to game out ways to use executive authority in pursuit of Barack Obama’s amnesty policies. A leaked “pre-decisional deliberative” memo from DHS explores four options for issuing work permits to immigrants currently ineligible to receive them — a move already explicitly blocked by the Fifth Circuit federal appellate court and federal law. But does the memo actually show a strategy to circumvent the courts and Congress? Not exactly:
Ian Smith of the Immigration Reform Law Institute — a party to the case in which the injunction against DHS was issued — accuses DHS in this essay at The Hill of plotting to act in contempt of the federal courts:
The internal memo reveals four options of varying expansiveness, with option 1 providing EADs to “all individuals living in the United States”, including illegal aliens, visa-overstayers, and H-1B guest-workers, while option 4 provides EADs only to those on certain unexpired non-immigrant visas. Giving EADs to any of the covered individuals, however, is in direct violation of Congress’s Immigration & Nationality Act and works to dramatically subvert our carefully wrought visa system.
As mentioned, the first plan the memo discusses basically entails giving EADs to anyone physically present in the country who until now has been prohibited from getting one. A major positive to this option, the memo reads, is that it would “address the needs of some of the intended deferred action population.” Although DHS doesn’t say it expressly, included here would be those 4.3 million people covered by the president’s DAPA and Expanded DACA programs whose benefits were supposed to have been halted in the Hanen decision. On top of working around the Hanen injunction, this DHS plan would also dole out unrestricted EADs to those on temporary non-immigrant visas, such as H-1B-holders (their work authorizations being tied to their employers) and another 5 to 6 million illegal aliens thus far not covered by any of the President’s deferred action amnesty programs. By claiming absolute authority to grant work authorization to any alien, regardless of status, DHS is in effect claiming it can unilaterally de-couple the 1986 IRCA work authorization statutes from the main body of U.S. visa law. While DHS must still observe the statutory requirements for issuing visas, the emerging doctrine concedes, the administration now claims unprecedented discretionary power to permit anyone inside our borders to work.
The anonymous DHS policymakers state that a positive for this option is that it “could cover a greater number of individuals.” In a strikingly conclusory bit of bureaucratese, they state that because illegal aliens working in the country “have already had the US labor market tested” it has been “demonstrat[ed] that their future employment won’t adversely affect US workers.” The labor market, in other words, has already been stress-tested through decades of foreign-labor dumping and the American working-class, which disproportionately includes minorities, working mothers, the elderly, and students, is doing just fine. Apparently, the fact that 66 million Americans and legal aliens are currently unemployed or out of the job-market was not a discussion point at the DHS “Retreat.”
Not too many other news agencies are giving this much attention, although our friends at NRO, NewsMax, and Breitbart certainly have. One reason might be the nature of the memo — unsigned, “pre-decisional,” and mainly non-committal. It consists of four options ranging from issuing work permits to any non-citizen in the US regardless of how they got here to limiting them to just those with non-expired valid visas. The memo then discusses the pros and cons of all the options. It looks mainly like a work project by a low-level staffer to brief a higher-up on the range of issues within the DAPA/DACA fight more than a smoking gun for a strategy inside the White House itself.
Even the author of the memo makes a pretty good case for why this strategy won’t succeed in getting Obama what he wants in regard to illegal immigrants in case 1, the only case that envisions offering work permits to those who entered the US illegally:
For one thing, an EAD doesn’t resolve illegal status. It’s not a green card or a visa. Recipients can still be deported, and an EAD might make them easier to find. In fact, it’s a bad idea all the way around, not just for American workers and Congress but also for the illegal immigrants, too. The other options considered in the memo relate only to those who entered the country legally, such as those on expired visas or non-work visas, with increasing restrictions on eligibility.
It’s an interesting analysis, but one that doesn’t have any policy recommendations, and one with plenty of ammunition for immigration-enforcement advocates. That’s not to say that the White House couldn’t adopt this as a basis for strategy, but there isn’t much in here that advises DHS on how to defeat an injunction imposed by the federal courts. It’s more like spitballing on a few options with no actual plan to successfully implement any of them. Vigilance is certainly warranted, but this isn’t a battle plan of any kind. It might even be pretty good ammunition for opponents of the Obama administration.