The Politicization of Policy

Earlier today the Supreme Court, in a 4-4 deadlocked ruling pertaining to President Obama’s Executive Order pertaining to the status of the parents of American citizens or legal residents who are in the country illegally, issued the following ruling: “The judgement is affirmed by an equally divided Court.” In the short term this means that the original District Court ruling, affirmed by the 5th Circuit Court of Appeals, stands. It is unclear whether this means that the President will seek to enforce his executive order to not deport the parents of American citizens or legal residents outside of the 5th Circuit or not. The ruling is partially the result of Texas and 25 other states shopping for a sympathetic District Court Judge, which is why they filed it in Brownsville, not Austin the state capitol. It demonstrates both the challenges of a divided Supreme Court and the politicization of policy.

While Speaker Ryan has issued a statement lauding the decision and claiming it as a victory for the Constitution and Congress, specifically under Article 1, this is simply part of the politicization of this particular policy. And that comes at a price. Both in lives affected and in dollars spent. The reality that no one wants to mention when discussing the President’s DAPA and expanded DACA order to defer deportations for specific, low risk classes of undocumented people in the US, and which demonstrates why Speaker Ryan’s claiming victory for Article 1 and the Congress’s power to write the Law, not the Executive Branch, misses the point is that Congress did write the Law. Congress made it a misdemeanor to improperly enter the US; specifically entering in an undocumented capacity without papers while avoiding immigration control. Unlawful presence, overstaying one’s visa or not leaving the US and returning to one’s home country when one is supposed to is not actually a crime at all. The Executive Branch, however, has to administer (execute) this law. But here’s where the rubber of making Law hits the road of enforcing it: Congress also has to provide the ways and means.

Currently Congress only appropriates enough money for the Department of Homeland Security to deport approximately 450,000 undocumented immigrants that have illegally entered or overstayed their visas. This is not something new. Congress never appropriates enough money to deport everyone who has entered illegally or overstayed their visas. The cost for trying to identify, round up, and deport all of the estimated 11 million undocumented people – both improper entry and unlawful presence – in the US right now is estimated at no less than a $100 billion and up to $600 billion. As a result every Presidential Administration has had to prioritize who to focus on. The focus is always on those who have been arrested and/or previously convicted of engaging in violent crimes or who are tied to human or drug trafficking or terrorist/extremist organizations. And this makes sense from a domestic, public policy standpoint: focus on those who present the greatest potential threat to the US, American citizens, legal residents, and those visiting the US. What Speaker Ryan, Governor Abbot of Texas and his 25 colleagues from when he was the Texas Attorney General, Federal District Court Judge Hanen, the 5th Circuit Court of Appeals, and the four Supreme Court Justices that voted to uphold the lower court rulings against the Administration’s Executive Orders have chosen to ignore is that tomorrow the Obama Administration still only has enough Congressionally appropriated funding to deport 450,000 people in the US illegally. And tomorrow the Department of Homeland Security is still going to have to prioritize who they focus on – the parents of an American citizen who other than the Federal misdemeanor of improper entry or the not an actual crime at all of unlawful presence are otherwise law abiding or the guy trafficking women for the sex trade.

We’ve reached this moment of policy and juridicial stupidity because both the President and those opposing his policy of prioritization politicized the issue. The President publicly announced the policy of placing the parents of US citizens and legal residents on the low priority list for deportation, which provided them with an effective exemption. President Obama did this as part of a strategic communication strategy to signal to an important constituency that he, and the Democratic Party, were not going to forget them even if Congress was unable or unwilling to act. The House GOP majority, as well as twenty-six Republican controlled states, responded by also strategically communicating to their constituencies that they would sue the President to overturn his Executive Order to ensure that the Law was administered and that only Congress, as Article 1 states, can write Law. The issue, which was already politicized, was dialed up to 11.

There is no way of knowing if, had the President not publicly announced what he was doing, the GOP House Majority or one or more of these 26 Republican governed states would have still objected as vehemently or opposed the President’s actions through a lawsuit. Moreover, there isn’t equal guilt for politicization on both sides. Until or unless Congress appropriates more funds for deportations, which they do not seem to be inclined to do, the Obama Administration, and any subsequent administrations, will only have the funding – the means – to identify, arrest, detain, and deport 450,000 undocumented people per year. No matter what Judge Hanen, the 5th Circuit Court of Appeals, or the Supreme Court rules, tomorrow the Department of Homeland Security, part of the Obama Administration’s Executive Branch, will still have to prioritize who to deport. I fully expect that they will continue to prioritize their efforts on those accused of and/or convicted of violent crimes, as well as those suspected to be trafficking drugs and people or of being affiliated with extremist or terrorist organizations. Focusing on less dangerous cohorts among the undocumented would create an actual threat to the safety and security of the US, its citizenry, its legal residents, and those visiting for work, school, or enjoyment.

53 replies
  1. 1
    redshirt says:

    How often did Congress sue the President prior to Obama?

  2. 2

    CIS representative was on the Snooze Hour lying about deportations under President Obama. Whory Woodruff tag teamed with him while questioning the immigration advocate.

  3. 3
    HinTN says:

    Roberts, burnishing his legacy again. Not that I understand Kennedy’s vote either…

  4. 4
    Adam L Silverman says:

    @redshirt: appears to be six:
    And for the record this Congress has only sued President Obama twice. Once was Dennis Kucinich… The other was the Boehner filed lawsuit about the employer mandate. This case was 26 states suing with the GOP Majority in the House filing amicus briefs.

  5. 5

    Is the 450,000 figure just funding? What about the limited amount of bandwidth in the legal system? (Is there one? Do undocumented folks have rights like that?)

  6. 6
    Baud says:

    To be fair, the program, I believe, was a little more aggressive than simply prioritization of deportations.

    On the other hand, the judge they have to deal with is way over the top, which obviously complicates matters.

  7. 7
    Adam L Silverman says:

    @Major Major Major Major: I’ve never seen the funding completely broken down and I was looking for it for this post. There is a special hearing process for those detained and slated for deportation. I do not know if the funding to deport 450,000 people includes this or is separate from it and that funding comes from a different appropriation.

  8. 8
    JPL says:

    Castro gave a strong response about voter registration, and getting out the vote in the Latino community.
    I think the odds that he is VP just got stronger.

  9. 9
    Adam L Silverman says:

    @Baud: The program was packaged as deferment (until Congress would act). But that is just fancy language for placing these folks at the bottom of the prioritization list.

  10. 10
    Trentrunner says:

    I find easier (and more accurate) to call ALL of this–the three branches, including SCOTUS, the media, publishing, everything–political.

    They’re all just levers and forces for our side to work and for their side to work.

    And labeling something “political” is itself one of those levers.

    It’s all about power and exerting it. The rest is just specifics.

  11. 11
    burnspbesq says:

    Except that, as Secretary Clinton correctly pointed out in her tweet this morning, this ruling is not, in any meaningful sense, final. It’s purely procedural. All it means is that the preliminary injunction against implementation of the policy remains in effect while the parties start discovery and slowly but surely get closer to a decision on the merits.

    I happen to think that the United States should win on the merits. But we’ll see.

  12. 12

    @Adam L Silverman: There was a link to a CAP(?) study somewhere in there (maybe in one of the links) that had legal fees at around 10% of the cost. I’m wondering though about the time and manpower factor–is the process slowed down by an intentionally slow/adversarial legal system, are there lots of appeals, that is to say, if 11 million people showed up at court one day, how bad would the bandwidth issue be? I’m basically wondering if there’s a bottleneck somewhere or if it could be sped up just with manpower/money. Where on Amdahl’s curve are we?

  13. 13

    Hasn’t what is currently being derided as amnesty been done before during both Bush I and Reagan?

  14. 14
    Baud says:

    @Adam L Silverman: Right, but I believe that the program gave immigrants certain assurances. That’s one step beyond an internal administrative decision about resource allocation.

    I still think the lower courts were wrong in issuing the injunction.

  15. 15
    SiubhanDuinne says:


    He’s been my personal choice from the beginning, so I’m glad to hear that.

    But that said, I do trust Hillary to pick a running mate who is the best fit for her, both in terms of perhaps locking down a particular state or demographic, and especially in terms of someone who largely aligns with her principles, who will be fearless in challenging HRC in difficult moments (behind the scenes), and yet be a loyal team player once the hard decisions have been made and implemented. Someone not unlike Joe Biden.

  16. 16

    @Major Major Major Major: ICE and USCIS and INS before that have been chronically underfunded.

  17. 17
    Baud says:

    @burnspbesq: Well, it’s a better result than had Scalia been around to vote, I’d imagine. But for the people involved, it’ll be at least another couple of years of limbo.

  18. 18
    Baud says:

    @SiubhanDuinne: I’m not too worried about the running mate. All of the names being bandied about are solid, even if we have our own individual preferences.

  19. 19

    @schrodinger’s cat: The question is, if you doubled the funding, by what percent would that increase the deportations? Could we do a million per year, or are there other administrative slow-downs?

  20. 20

    @Baud: Limbo is where immigrants live. The entire green card process is a waiting game. H-1B applications are decided by a lottery. Most citizens have no idea of how bad things can be. I am not even talking of undocumented/illegal immigrants here.

  21. 21

    @Major Major Major Major: If Trump assumes office, people will be paying smugglers to get out.

  22. 22
    SiubhanDuinne says:


    Yes, exactly. That is what I was attempting, clumsily, to convey.

  23. 23

    @Adam L Silverman:

    The program was packaged as deferment (until Congress would act).

    It also allows undocumented immigrants in certain categories to get work permits, so it goes beyond just a low prioritization for deportation.

  24. 24

    @schrodinger’s cat:

    Hasn’t what is currently being derided as amnesty been done before during both Bush I and Reagan?

    Sort of. This program is much larger than those, which applied only to those who were in the country illegally but had a family member who was a legal resident.

  25. 25
    Calouste says:

    Things not looking good in the UK referendum so far. Early results are favoring Leave, where they were expected to favor Remain.

    The only good side effect of the UK leaving the EU is that it might spell the end of UKIP, because racism would be the only thing they have left to run on.

  26. 26


    The only good side effect of the UK leaving the EU is that it might spell the end of UKIP, because racism would be the only thing they have left to run on.

    Because that stops political parties. //

  27. 27
    Adam L Silverman says:

    @burnspbesq: Correct. As you know I’m much more focused and interested in the policy. And because of the reality, I don’t expect the policy to change much in practice.

  28. 28
    Adam L Silverman says:

    @Major Major Major Major: In order to do all 11 million, I think the estimate was it would take about 20 years or so.
    Here’s the CAP report, which only focused on trying to do half the total estimate:
    And here’s the American Action Project’s report:

  29. 29
    Adam L Silverman says:

    @schrodinger’s cat: Yes.

  30. 30
    Adam L Silverman says:

    @Baud: What they did was formalize the low prioritization, which took these folks out of what was described as “limbo”.

  31. 31
  32. 32
    patrick II says:

    We should always keep in mind that the Republican establishment does not actually want the immigrants to leave. Nor do they want a bill passed making them legal. They want illegal immigrants who will work cheaply and who they can fire at will.
    A few years ago Georgia actually passed and enforced an anti-immigrant bill. The result was over a billion dollars of crops rotting on the ground. The law is still on the books,but not enforced and illegal immigrants have returned to pick crops for mostly Republican businessmen. They like having the Hispanics here, they just don’t want to let them to have rights or particularly be able to vote.

  33. 33

    @Tissue Thin Pseudonym: Deferment was applicable even in this case to the parents of children who are citizens, is it not?

  34. 34

    @patrick II: They want a workforce they can exploit. All these law and order types are mum on prosecuting the employers who hire undocumented workers.

  35. 35
    Anoniminous says:

    Politicizing policy is what politicians do. It’s the name of the game. The raisin-dee-etcetera on top of the bagel.

  36. 36

    From the immigration lawyer’s blog that I follow, apparently the number of people applying for citizenship has jumped up by 28%, from last year.

  37. 37

    @patrick II: The Republican establishment wanted the Senate bill just fine. That was classic ‘DC Consensus’ happening–the racists get thrown under the bus, big business gets long-term stability at the expense of eating a few vegetables, Democrats get better status for workers and a path to citizenship (and of course the Dems are big business too).

    Shame big business forgot what they were doing and invented the Tea Party.

  38. 38
    Anoniminous says:

    @schrodinger’s cat:

    Arizona and New Mexico seeing a lot of people who have lived here for decades finally getting their citizenship so they can vote against Trump.

  39. 39
    Mnemosyne says:

    @schrodinger’s cat:

    And I’m sure it’s not just Latinos, either. The Republicans know that “immigrant” is mostly an anti-Latino slam, but immigrants from everywhere else (including the “good” ones from Europe) assume that they’ll eventually be included, one way or another.

  40. 40

    @Mnemosyne: Obama won naturalized citizens by a huge margin in both 2008 and 2012.

  41. 41
    Regine Touchon says:

    Yes Biden for her veep!!!! Ha!

  42. 42
    Regine Touchon says:

    @patrick II: same here in Alabamy!

  43. 43
    Amaranthine RBG says:

    I was driving today so I listened to 8 hours of NPR, PRX, CNN, FOX, BBC, etc and probably heard 20 different “reports” about this and not a single fucking one made the most salient point – the one you make – that there is a limited budget and Obama has to decide how to allocate those resources. Not a single story.

    So let me ask a question that can probably only be answered by speculation. I ASSUME there are not any laws that prioritize how and why immigrants are to be deported. If Obama were to was up tomorrow and decide that, say, Albanians presented a dire threat to the US, could he allocate the budget for 450K deportations to comprehensively seeking out and finding and deporting Albanians? With the knowledge that some “easier” deportations of Latinos just would not get made?

  44. 44
    Adam L Silverman says:

    @Amaranthine RBG: I don’t think that would pass muster. I’m also not the right person to ask that question of and I don’t really know where you could or should look to for answers to that.

  45. 45
    Miss Bianca says:

    This shit makes me so fucking angry.

    That is all. I could say more, but that is all I trust myself to say.

  46. 46
    Adam L Silverman says:

    @Miss Bianca: You could say Amazon! Just a thought…

  47. 47
    Miss Bianca says:

    @Adam L Silverman: Or I could say, “you’re kind of a nut under that policy wonk-y exterior, aren’t you?”

  48. 48
    Adam L Silverman says:

    @Miss Bianca: I decided I would poke the bear. It was too good an opportunity not too. Also, the doctor prescribed the really big horse sized pills for my respiratory infection.

  49. 49
    burnspbesq says:

    @Amaranthine RBG:

    I ASSUME there are not any laws that prioritize how and why immigrants are to be deported.

    Correct–and it’s actually even better than that. 6 U.S.C. section 202(5) looks an awful lot like a grant of unreviewable discretion to the Secretary of Homeland Security to set enforcement priorities. Which is exactly what Secretary Johnson did.

  50. 50
    Miss Bianca says:

    @Adam L Silverman: Ah, so you’re being led astray under the influence of serious drugs. I understand. We’ve all been there, man.

    Or at least, some of us have been there.

    So I’ve heard.

  51. 51
    Vhh says:

    @patrick II: Alabama passed that law. It became laughable when police arrested major execs of Mercedes Benz and Honda (two of the state’s best paying firms) for not having all their papers with them. Migrant worker left in droves, farmers’ crops rotted in the fields. The law is no longer enforced. Wing nut faceplant.

  52. 52
    Adam L Silverman says:

    @burnspbesq: Exactly. Thank you for following up on this. I had to step away for a bit. That’s part of what makes the District and Appellate Court rulings so bizarre. The law is clearly on the Administration’s side.

  53. 53
    Adam L Silverman says:

    @Miss Bianca: Its generic antibiotics. I’m pretty sure I can pass a urinalysis if need be.

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