Democrats’ troubling adventure in a ‘Wonderland’ without ‘rule of law’

I don’t understand the positions the Democrats are taking on the enforcement provisions in the Immigration and Nationality Act (INA), and I was an immigration counsel for the Democrats on the House Judiciary Committee for seven years.

I represented Democrats in staff level negotiations on immigration provisions for bills and at conferences between the House and the Senate. I counseled them on immigration issues at hearings and markups, and I handed out talking points I wrote for them when a bill was on the floor.

Since then, they seem to have stepped through the looking glass into a Wonderland in which the meaning of a word is dictated by the person speaking it — if the person is a Democrat. “When I use a word,” Humpty Dumpty said, “it means just what I choose it to mean.”

According to the Democrats, the words in section 1227 of the INA mean that a Democratic president can ignore the deportation grounds Congress wrote and make up his own list of deportation grounds.

This is what the law says:

“(a) Classes of deportable aliens

“Any alien … shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens…”

Democrats have done the same thing with the separation of powers provisions in the U.S. Constitution. The framers of the Constitution believed that the way to safeguard against tyranny was to separate the powers of government into three separate branches so that each would check the other two. Article 1 established the Legislative Branch (Congress) to create the laws. Article 2 established the Executive Branch (the president) to approve and carry out the laws created by the Legislative Branch. And Article 3 established the Judicial Branch (the courts) to interpret the laws passed by the Legislative Branch.

According to the Democrats, this means that they can ignore the laws that Congress passed — and create their own without a vote.

They weren’t doing this when I was their counsel on the Judiciary Committee.

The Democrats’ defiance of the law is illustrated by the transition former President Barack Obama made from enforcing the laws written and passed by Congress to deciding for himself who should be deported.

When the host of a Los Angeles radio program asked Obama to stop the deportations of undocumented aliens in October 2010, Obama said that while his administration was putting less emphasis on deporting families and more emphasis on deporting aliens with criminal records, he was adamant about adhering to the the Separation of Powers principle:

“But the most important thing that we can do is to change the law because the way the system works — again, I just wanna [sic] repeat, I’m president, I’m not king. If Congress has laws on the books that says that people who are here who are not documented have to be deported, then I can exercise some flexibility in terms of where we deploy our resources, to focus on people who are really causing problems as opposed to families who are just trying to work and support themselves. But there’s a limit to the discretion that I can show because I am obliged to execute the law. That’s what the Executive Branch means. I can’t just make the laws up by myself.”

A few months later, in March 2011, he said that with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” And two months later, in May 2011, he conceded that he couldn’t “just bypass Congress and change the [immigration] law [him]self. That’s not how a democracy works.”

But three years later, his Homeland Security Secretary, Jeh Charles Johnson, informed USCIS, CBP, and ICE officers that they were prohibited from apprehending, detaining, or removing an undocumented alien who was not in one of the priority categories described in the memorandum unless, “in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.”

There is no “important federal interest” requirement in section 1227 of the INA.

And this Humpty Dumpty disregard for the law and the Constitution will continue if Joe Biden is our next president.

In his “Plan For Securing Our Values as a Nation of Immigrants,” Biden says that he intends to follow the approach that the Obama-Biden administration took, which was to prioritize enforcement resources on removing deportable aliens who are threats to national security and public safety.

In fact, Biden intends to go even further than Obama did.

At the March 15, 2020, Democratic primary debate, Biden said, “in the first 100 days of my administration, no one, no one will be deported at all. From that point on, the only deportations that will take place are commissions of felonies in the United States of America.”

Biden’s running mate, Sen. Kamala D. Harris (D-Calif.), feels the same way. When asked on the second night of the June 2019 Democratic debates if an undocumented alien should be deported if his only offense is not having lawful status, her response was, “I will say, no, absolutely not. They should not be deported.”

I have concerns about the immigration laws too, but I believe that we are a nation of laws. Changes in the law should be made by Congress — through the legislative process in accordance with the separation of powers principle in the Constitution — not behind closed doors at the White House.

I don’t think the solution is to let the president pick out the “good ones” and ignore the rest.

As Obama said before he stepped through the looking glass, “That’s not how a democracy works.”

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.