Only Congress Can Do What’s Needed To Deal With The Border Crisis
That ball is in your court, Congress.
Predictably, the ongoing border crisis has devolved into a partisan battle between the White House and the Republicans in Congress over who’s responsible for the current situation and what either side can do to stem the tide of children and families from Central America making their way to America’s southern border. To hear Republicans tell it, the situation is largely President Obama’s fault due both to his failure to ‘secure the border’ and executive actions he took last year to provide temporary relief to certain children of illegal immigrants, which they claim encouraged families in Central America to send their children north in the hope that they too will be granted some form of “amnesty.” Governor Rick Perry and others, meanwhile, have said that the President could help stem the tide by sending the National Guard to the border. Others have outright said that the President should deport these Central Americans even though a law supported by Republicans, and signed into law by a Republican President, explicitly prevents that from happening. For the most part though, there are very few concrete proposals coming out of Congressional Republicans that would actually do anything to deal with the present problems on the border. Instead, most of them seem to be using the crisis to bash the President and accuse him of not doing anything.
As CNN’s Halimah Abdullah notes, though, while there are some things the President can do, there’s a lot that he cannot do, and that won’t get done unless Congress acts:
Washington (CNN) – President Barack Obama is vowing to act on his own due to House inaction on immigration reform that proponents say could help address a wave of undocumented kids crossing the border from Mexico. But there are limits to the power of his pen.
Yes, the President can send National Guard troops to the border as some House Republicans insisted at recent congressional hearing on immigration.
No, the administration can’t put immigrant kids “on a bus like we normally do and send them back down to Guatemala,” as Alabama Republican Rep. Mike Rogers suggested.
The children have arrived in droves after fleeing violence and poverty in Central America and are seeking “permisos” or a pass to stay in America.
Thousands are being held in detention facilities as the Obama administration tries to figure out what to do.
1. The president can’t bar people from applying for political asylum. Those guidelines are set by the United Nations Refugee Convention, which the United States has signed, said Stephen Yale-Loehr, an immigration attorney and professor at Cornell University Law School.
2. And no, the President can’t increase the number eligible for green cards because their spouses or parents are U.S. citizens. Such matters are set by law. Though some immigration advocates have argued spouses and children shouldn’t count toward 140,000 limit on employment-based green cards, whether the President can make that kind of change unilaterally is murky territory.
3. Obama also can’t just eliminate judicial review for people ordered deported — such a move would violate the Constitution.
4. Nor can he just load up all undocumented immigrants on a bus and deport them without some sort of legal hearing. That type of action also would violate the law.
“The Constitution says that all persons have due process rights in the U.S. whether they are from another country or the U.S.,” Yale-Loehr said.
5. And, for those hoping for (or fearing) a blanket executive action legalizing all undocumented immigrants, no the President can’t do that either. There’s a law for that.
“There are constitutional limits on what the president can do. We have a tripartite government system. The Congress enacts the laws; the President implements the laws,” Yale-Loehr said. “The President cannot create an immigration policy willy-nilly, whole cloth. He cannot create an immigration law. He has to get Congress’ approval to change an immigration law. “
As Abdullah notes, there are some things that President Obama can do without Congress. He could change policy as to how deportation proceedings are prioritized, for example. As a general rule, the current policy has been that priority is given to those deportation proceedings involving people with criminal records, especially a record of violence, or ties to drug cartels in Central America, South America, or Mexico. Because of that priority, people with no records end up being placed at the back of the line for hearings in an already overburned administrative hearing system and, of course, these latest arrivals are going to be at the very back of that line for the most part. That policy could be changed to process these people more quickly, but it would also mean delaying the hearings for criminals. The President could also send more border patrol agents to the border as Perry and others have requested. However, he would have to do so within the confines of the budget that Congress has already authorized and whatever authority he or the DHS Secretary may have to shift funds from a different program to border patrol activities. Part of the supplemental funding bill that the President is requesting from Congress would include funding for additional border patrol agents, and there is even more funding for such programs in the immigration reform bill that was passed last year by the Senate, but which is presently effectively dead in the House. He could also order the DHS to look into alternatives to detention or release for these migrants, such as angle bracelts, although that too would require either additional funding or relying on whatever is left of the Fiscal Year 2014 budget. Finally, Abdullah notes that the Administration could expand the pro bono representation program for people proceeding through immigration hearings, which would help to speed the process up. To really speed the hearing process up, though, ICE would need to hire more immigration judges, which are essentially administrative hearing officers rather than Article III Judges, but that would obviously require more money and would be a process that would take time before new employees were up and running and able to help process cases. Finally, as far as Governor Perry’s call for President Obama to send the National Guard to the border, it’s worth nothing that it is Rick Perry who is Commander in Chief of the Texas National Guard, not Barack Obama. Perry could call up the Guard and order them to help the Border Patrol deal with this problem at any time he wanted to.
In the end, then, this is another issue that is not going to be solved unless Congress acts. They could pass the supplemental spending package that the President is requesting, or some alternative that the parties can agree to that may end up being less than what the President is asking for but would be better than doing nothing. They could amend the 2008 law that prevents ICE from simply repatriating these migrants, although it is unclear that any such change would have nay impact on how we must process the cases of people who arrived before the law was changed. And, of course, they could pass comprehensive immigration reform but the odds of that happening stand somewhere between slim and none. Moreover, while any legislation obviously needs to pass both the House and the Senate, it’s the House GOP Caucus that holds all the cards here given their previous reluctance to do anything regarding immigration reform, or anything smacking of bipartisanship for that matter. The question that they have to ask themselves now, with just about two weeks left before they go off on a month long vacation, is whether they are going to act on this issue, or just use it as another partisan cudgel against the President.
Nice summary, Doug. Concise and to the point. I suspect that there are also a few minor things that the President could do that would be worth doing, but I don’t know what they are and they aren’t going ‘fix’ the problem.
(Since I rag you when I don’t like what you wrote or the way you wrote it, it’s only fair that I give you credit when I think you’ve done a good job.)
Come on, we all now it’s exclusively Obama’s fault, he’s advertising the current legal situation in Central America (according to Rush that is). The Republicans were well intentioned when they instituted the law to protect poor trafficked women from white slavery, and you can’t force the state of Texas to use its limited resources by sending the National Guard to the boarder without federal subsidies. Sometimes I think you’re more of a NE RINO than Jazz.
On a more serious note, what are the options?
We can fortify the border with something looking like “Return to New York”. Probably requires something like 500,000 guards to keep 2000 miles manned 24/7 with one guy every 50 yards.
We can hire something like 1,000 extra federal immigration judges, +10,000 clerks, bailiffs and what else is required to set up 1000 extra court rooms, and start seriously cutting down on processing times. Of course, those are lifetime appointments, so if you hire enough to make a difference you have a lot of unusable people in a few years.
Or we can get some form of immigration reform, but that is meaningless unless we add a lot of people to process 10,000,000 plus petitions in a reasonable time frame. As antiquated as the INS processing system is, probably a lot of hardware too.
Either way it requires a lot of funding, the $4B they’re talking about are just a drop on the hot stone. But then, we could drop a trillion dollar into Iraq and Afghanistan, so maybe we have the money for it (or at least the credit).
I understand that a few well regulated Texas militias are on the way down there to handle the issue. Hey what could go wrong? SECOND AMENDMENT SOLUTIONZ.
We could convert the border regions into desolate wastelands with roving packs of heavily armed lunatics patrolling the border regions, like some kind of post-apocolyptic dystopia.
I think that actually is the plan in Texas and Arizona, actually. Citizen militias and what-not. Have to rely on lax environmental regulations to make the full wasteland experience though.
After seeing our reaction to the events Doug describes, it seems to me that the most remarkable thing about the Danish rescue of their Jewish population during World War II was that Sweden accepted the Jewish refugees without quibbling and without confining them to refugee camps.
Who would pay for that? This is the country’s problem, not just Texas’s problem. Congress could call up the National Guard and repel the invasion by illegal immigrants. That is, if it wanted to deal with the problem. It is going to be expensive for a country that is already being kept afloat on borrowed money.
@DrDaveT: I agree, great post Doug.
I know, Republicans will wait until they have a congressional majority. Then they will spring into action to deal with
immigration reformPlanned Parenthood.
One thing that is striking here is that at the same time the Republicans are arguing that Obama is overstepping his authority and acting unilaterally and Speaker Boehner is suing him over it, they are also calling for him to ignore the law and act unilaterally on this issue.
I know that all of this is politics, but I really do wonder whether members of Congress really understand how the system works (I know for a fact that many citizens do not).
@Steven L. Taylor: Those same moronic citizens tend to elect moronic Congress Critters.
@ Another Mike
Considering how Perry has talked up succession (AKA treason), maybe this is a good time for him to discover the joys of going it alone…
There’s no need for Congress to legislate. They should just sue the president, again and again.
So, even if it wasn’t an election year, does anyone think Congress could do anything?
@Tillman: In theory, yes. In reality, the politics align with the institutional structure to practically result in a big no.
Of course the moment he did anything they would be screaming about Obama the tyrant and… IMPEACH!!1!
Should be, “We moronic citizens ….” What choice do we have? How many names were on your congressional primary ballot? And how did they get there?
He can’t? You mean he can’t unilaterally change welfare reform laws, by eliminating the work requirement? He can’t unilaterally change Obamacare…18+ times now? He can’t unilaterally change immigration law to allow “Dreamers” to stay in the country? He can’t unilaterally ordered Border Patrol agents not to carry out provisions of the immigration laws that he does not like? He can’t unilaterally target conservative groups for heightened IRS scrutiny? He can’t unilaterally obtained phone records from staff at the Associated Press? He can’t unilaterally threaten to arrest military priests for practicing their faith during the partial government shutdown? He can’t unilaterally sell thousands of guns to criminals, in the operation known as Fast and Furious, and then refuse to comply with congressional subpoenas about the operation? He can’t unilaterally kill four Americans overseas in counter-terrorism operations without judicial process?
Yeah, this president is all about making sure the fine points of the law are respected, defended, and complied with by his administration! HA!
@Jack: Well, two basic observations:
1. You are not properly characterizing a lot of the items in your list (for example, the IRS issue was not at the President’s direction and some of the issues noted are within the purview of executive choices–so let’s at least be accurate).
But, more importantly,
2. It is rather problematic to complain about these issues and then state he should ignore the law in this case–especially when the law appears to be quite clear on this topic.
@Steven L. Taylor: I’m saying this president picks and chooses what laws he wants to abide by and those he does not.
Any new law Congress passes will just be another in a long line of those he will or will not abide by.
@Jack: Except that you are not really detailing laws that he will not abide by. You are mixing legitimate gripes (ACA) with far less clear issues (the Dreamers issues) with falsehoods (the IRS situation).
If Congress passes a specific law covering this case and he then blatantly ignores it, then sign me up for the impeachment discussion.
Beyond that, if you really find the president’s actions troubling, calling on him to ignore a fairly clear and unambiguous law (i.e., regarding these youths) strikes me as a problematic position (to be kind).
@Steven L. Taylor:
Yes, we cannot on the one hand fault President Obama for ignoring, changing and “making” law and then on the other hand suggest he should ignore some law. That would only give him retroactive justification for what he did in the past.
This article has more on the law in question: http://www.debbieschlussel.com/73182/fact-checking-rush-limbaugh-on-immigration-the-border-crisis-bush-obama/
The constitution gives congress the power to repel invasions, which is what this is. I do not know what form this would take, possible a joint resolution or declaration of some kind. The president would be compelled to close the border and return the illegals. This could also suspend the law now preventing this.
Admittedly that is just my wild interpretation. I do not even know whether there is such a thing as repelling an invasion outside the context of war.
I don’t know of anyone expecting anything will be done about this problem.
The Congress is behind this problem because of inaction.
Now they are doubling down on their inaction.
And trying to blame the Executive for the lot of it.
You really can’t make up how f’ed up Republicans have become.
In other words…Hey Republicans…how about you get off your lily white arses and do something for your $175K a year for a f ‘ing change.
No, it isn’t. No matter how mad it makes you, it is not an armed incursion by the military of a foreign power, and no amount of judicial jiujitsu can make it one.
One of the ways our laws are suddenly and unexpectedly out of date is that they expect our foreign affairs (military or otherwise) to be entirely mediated through the governments of the nations involved. They make no provision for protracted ‘wars’ against multinational nongovernmental organizations, nor ‘invasions’ by hordes of juvenile refugees and adult fortune-seekers.
It doesn’t make me mad. I have almost no emotional investment in this issue. I see the white population headed down toward 40 percent and the Latino population headed up toward 40 percent with blacks remaining about the same and Asians increasing slightly. This “invasion” just speeds up the process somewhat. There will not be jobs for everyone, so those not working will be supported by the government and the oligarchy will do better than ever. We will continue to borrow money to pay for our fantasy adventure.
I’ll leave it to you lawyers to hash out what to call hordes of unarmed people coming across the border. Maybe call them uninvited guests. Congress has to determine what to do. It is their job. The president has other things he is working on. He has an election to fund, and possibly other things.
I bet the voters in your Congressional District can’t wait to see your name on a primary ballot.
Your investment may not be emotional (I don’t believe that for a second.) It sure appears to be based on race.
He can not run for a third term.
That’s better than a lot of other suggestions I’ve heard; I may steal it.
It makes me mad, but usually not at the uninvited guests.
You really need to run for office. I want to see you suspend laws that have been been enacted by legitimate legislatures and enforced by a duly elected executive.
I hear Dogpatch needs a new mayor.
Yes, but who said otherwise.
The demographers have projected what the makeup of the country would look like in 50 years. The numbers are from memory and are probably pretty rough. I am merely reporting a trend, which may be speeded up now.
I have become rather stoic. It is just a self-defense mechanism. Look at congress, look at the president, look at the situation of the country across the board, look at the political parties. Do you think anything will get resolved? The country is on a trajectory and we have passed through the upwards part.
There is no doubt that we need to build the Great Wall of America but I have an idea on how to deal with the current situation.
We give them clothing, feed them and give them medical care and then force their countries to come get them. Then we force them to take them back home and then we force them to pay for it.
Set an example then build a wall.
Yes of course, the fact that white people will be a minority and not white people will be a majority in this country means that the USA is on a “downward trajectory”.
Your bigotry could not be more blatant.
Members of the Senate and House are sitting around darkness when they could be passing legislation that should include: stop the flow of the thousands coming over daily, turn the buses around, return these people to wherever they came from, put the National Guard down there to help as needed. Send the legislation to the President . If he vetoes it, that will be his problem . Our leaders need to put their heads together and work on the problem. Drop the grandstanding, use some common sense, and get ‘er done! That is the way things used to get done up there. That is the way businesses get things done. The Supreme Court needs to get involved and help with some of the legal aspects. When I see volunteers and church groups helping out strangers, then our leaders can pitch in too.
One other thing. Any one who comes in with face and body covered with gang type tattoos needs to be sent back or locked up immediately. That’s trouble if we’ve ever seen it.
I am not advocating ignoring medical needs of these people. Certainly they need to be treated. But some of these towns do not have the personnel and facilities to handle thousands of people. From what I have seen a lot of people and groups have pitched in and are helping in the small towns.
This has nothing to do with the IRS scandal or the AHA problems.
Something is wrong with this whole picture. Someone should have seen this coming.
“Hasta la vista, baby”
How are you going to do all that with your finger in your nose?
Is it ok if I point out that there is only one human race, and that we are all different shades of brown again?
Part of the problem is the idea that a “secure border” can solve everything, meaning that´s completely feasible to have completely miserable countries in the American Continent, if the citizens of these countries are kept away.
I guess I will have to change my pic. That is if someone will tell me how and where to do it, I have forgotten.
Yet I made no mention of doing it by myself. It was just a good idea. One that we know will never happen. Because it would fix the problem.
I always thought that a good idea was one that was well thought out and has some basis in reality.
I recall hearing a radio interview a while back with a retired US Border Patrol agent. He stated that we could line the US-Mexico border from the Pacific Ocean to the Gulf of Mexico with troops shoulder to shoulder with fixed bayonets 24/7/365 and we would not keep out people determined to cross into the United States.
He said he was successful at turning back pilgrims by talking to them and telling them about the risks of illegal entry into the US.
Mr. Mataconis’s Mataconis’ MataconisesDoug’s post.
It’s right in front of you Ty.
Yes, of course, because we certainly can’t have poor brown people “invade” our country…that will certainly lead to the “downward trajectory” of this once great nation…
lol, what wasn’t well thought out or based in reality?
Walls are good and so is making the people that made a mess clean it up and pay for the clean up.
Think of all the jobs building a Great Wall would create. All the jobs to maintain and run it. It could be so multipurpose too. Think big man.
Why not make counties take care of their own citizens?
You are a advocate of making people pay for things that the people need are you not? Of making people take care of people that can’t take care of themselves? Of their housing and healthcare?
Yes we can and yes you will! Can be our slogan.
@ernieyeball: Not only that. There are several countries in the American Continent that are extremely poor and/or have problems of severe governance, and there is no organized response to that. Simply keeping people from Honduras from entering the United States its not going to solve Honduras problems, and it´s neither safe nor healthy to have something like that in our continent.
It more aptly applies to the demographers who chart such trends. The trajectory of which I speak has little to do with immigration.
How are all these people getting all the way through Mexico ? Obviously Mexico is just speeding them them on through to this country; Mexico is not going to fool with them.
First thing to be done: turn the buses around, send them back down.
“That bus don’t stop here anymore”
I love all the overly simplistic and totally unworkable solutions being proposed here.
@OzarkHillbilly: What are some of your ideas ?
Every year, hundreds of thousands of Central Americans cross illegally into Mexico—400,235, to cite one oddly precise estimate from the Mexican National Institute of Migration—along the country’s southern border, which angles over 750 miles of river and volcanic slope and jungle at the top of Central America. Nobody knows exactly how many of those migrants are headed to the United States, but most put that figure at 150,000 or more a year,
Basically, less than one for each three people entering Mexico illegally by Guatemala are going to the US.
Hey… well Obama is going on vacation to work on his master stroke so don’t worry it will all be fixed in a couple of weeks when he reappears, waves his magic pen and takes a selfie.
You do have one idea that is reality based:
Can’t tell if it is well thought out til I see the new selfie.
You could be more specific about this trajectory.
Let me be president for oh lets say while Obama is on vacation. And I will make it happen.
Well, Ike went to Korea and JFK started us on the way to the moon. You might think about the Iowa caucuses as a first step for a Phillips Presidency.
I just want to borrow the power for a few weeks to deal with this issue. I mean dude is playing golf and partying because he is tuckered out again from fund raising. I am just trying to do my fair share. Let him get his rest and G.A. will hook him up with achievement we all can be proud of. We don’t even have to tell anyone I did it. He can have all the credit.
@G.A.Phillips: It is a shame, I must confess, that the president would refuse to take the three to four hours it would take to easily solve this simple problem.
Hey 🙂 Seeing he won a Nobel peace prize for saying “yes we can” in a some what inspiring way a couple hundred times you would think he could get it done in one or two.
The thing I don’t get is why he has not created a slogan to deal with global warming yet.
Your always thoughtful and well reasoned commentary is always appreciated.
I miss your old avatar. It suited you.
I was hoping some one could tell Grew. 🙂
@ernieyeball: Let’ s not try to throw in the race issue. This has nothing to do with race, so let’s not get sidetracked on that.
Maybe not to you but it was ‘notherMike that injected race into this thread. I am compelled to call him on it.
See post of 19:46 Sat July 13
When all talk of controlling immigration focuses on our Southern border it is about race.
Yes, but the fact that you chose to speak of it — and seem to think it’s important, or relevant, or something — is what tips everyone off. Why do you CARE that these are the trends?