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Obama And The Amnesty That Wasn't

[Guest post by Nathan Pippenger]

In my story yesterday, I tried to explain the longstanding practice of “prosecutorial discretion” in immigration enforcement, recently under attack by many of its former advocates, as well as some of the Immigration and Customs Enforcement officers tasked with carrying it out. Discretion, I noted, makes law enforcement agencies more effective by devoting scarce resources to addressing the most serious crimes.

Earlier this month, the Obama administration took an important step towards restoring some sanity to a disastrously dysfunctional immigration system when it announced it would examine—and apply discretion to—some 300,000 removal cases now sitting in immigration courts. (1996’s immigration reform law made “removal” the legal term for what used to be called “deportation.”) This decision has been widely misunderstood and misrepresented. It is not, as Arizona Governor Jan Brewer claimed, “a backdoor amnesty for hundreds of thousands—if not millions—of illegal aliens.” Nor does it put the president “on the verge of being lawless himself,” as Representative Steve King told Human Events (which itself wrongly claimed that the administration is “pulling out hundreds of thousands of illegal aliens already in the deportation pipeline.”)

This policy is simply an enactment of the principles laid out in ICE Director John Morton’s June 17 memo on prosecutorial discretion. That memo does not propose a blanket policy of relief for any undocumented immigrant without a criminal record. Instead, it lays out a series of specific criteria which represent compelling cases—cases in which prosecution would represent a waste of finite resources. These include victims of human trafficking, the elderly, veterans and active-duty members of the military, and pregnant women. One expert on immigration policy predicted to me that of the 300,000 cases to be reviewed, “not even half, not even tens of thousands—maybe thousands” will receive relief under the specific criteria of the Morton memo. Marshall Fitz, an immigration expert at the Center for American Progress, concurs. “The review of 300,000 cases is significant because it shows commitment to clearing the decks and tackling the current caseload,” he told me. “Whether it’s a few thousand or ten thousand cases that ultimately get administratively closed is anybody’s guess—but it’s certainly not going to be in the realm of hundreds of thousands.”

And that’s in an immigration court system currently overwhelmed by pending cases. In some instances, the waiting period for a hearing is as long as 18 months. As I noted yesterday, in exercising discretion, the administration is acting within a well-established bipartisan tradition. It is possible to disagree with the wisdom of this policy. But portraying it as an unprecedented power grab, a “backdoor amnesty” for millions of “illegals,” or a naked refusal to enforce the law is deeply ignorant at best.