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.