[First published on skepolitical.com on 7/16/12]
Last month President Obama’s Department of Homeland Security issued a memorandum regarding the enforcement of immigration laws. Immigration is one of those policies, like prison reform or even foreign policy, that has very little direct effect on me until I reflect on the fact that, to the extent that I consider myself to be a citizen of a sovereign nation, I am responsible for this nation’s policies. A major part of my ethical awakening in the past decade is to take this civic responsibility more seriously even though, as a relatively privileged white male, it is so much easier to ignore it on a day to day basis. Indeed, the fact that it took me a whole month to bother writing this article is a result of my natural inclination remain apathetic. Along with fighting for skepticism in education and civic discourse, fighting against apathy is one of the two driving forces in my current worldview. I consider fighting apathy to be an ethical stance, while the skeptical activism is more of a strategic stance. Of course, undergirding these stances is a fundamental belief in democracy and the American model in the first place. After all, if the nation in which I reside is not democratic and sovereign, then my ethical and strategic stances need to be quite different. I’ve heard some interesting arguments along these lines on Occupy Radio (iTunes link), including discussions with the anarcho-primitivist John Zerzan. I’m not ready to jump ship and join the anarchists, but the principled alternative is certainly not apathy. One thing the anarchists and statists (such as myself) should agree on is that solidarity is essential to social justice.
Though belated, I thought this post would be worthwhile because, as far as I can tell, I have a unique perspective on Obama’s executive order, stemming from my own particular brand of naïveté.
After listening to and reading several days worth of media coverage of the new immigration policy last month, I was truly shocked when I sat down and actually read the document. The facts that were implied and left unchallenged in the articles I had read and NPR discussions I listened to were simply not borne out in the text of the order.
From the media coverage, I got the impression that Obama had granted a temporary reprieve from deportation to a certain class of undocumented immigrants. All sides seemed in agreement on that point, and the various arguments and discussions hinged on this agreement. My impetus for reading the original document was that I wanted to write a post about how Obama’s decision related to my recent post about overcriminalization and, specifically, the problematic practice of prosecutorial discretion. I also wanted to point out that Obama makes a mockery of our system of government by arguing that he could not wait any longer for congress to act, for it should also be congress’s prerogative not to act or even to fail to act. An executive branch that respects the actions of congress only when it sees fit is not behaving as part of a balanced system but rather claiming the dominant position in a totalitarian system. These arguments seemed compelling to me, so I figured I should read the primary document to hone my argument for my post.
Imagine my surprise when I found the document to be very sensitive to the executive branch’s limitations regarding the right to assure illegal immigrants any leeway whatsoever. The memo was very careful to emphasize that even those immigrants who met the stated criteria were to be considered on a “case-by-case” basis. That is to say, even assuming they fit the criteria and the order stays in force (Obama is not exactly the most steadfastly principled politician, and Romney may be even less so), they could still be deported. “[The Department of Homeland Security] cannot provide any assurance that relief will be granted in all cases… This memorandum confers no substantial right… Only Congress, acting through its legislative authority, can confer these rights.” Since prosecutorial discretion was already necessarily being conferred, this language actually constitutes nothing more than a mere suggestion of how to apply that discretion. Indeed, the memo acknowledges that, “our ongoing review of pending removal cases is already offering administrative closure to many of them.” If you were a qualifying undocumented immigrant, would you voluntarily register your personal information with a government offering that level of “assurance” in a document that can be rescinded as suddenly as it was executed? Would you want your name and personal information on file in the event of a Romney presidency? Compared to what the media was reporting, if we interpret the document literally, registering for this program would seem to be a high-risk endeavor.
So, why was there such a discrepancy between what I was led to believe would be in the executive order and the actual text of that document? I suspect that the disconnect has less to do with negligence or misinterpretation by the media and more to do with the fact that the words in the memo are not to be taken literally. That is to say, I suspect that all the caveats and nods to Constitutional constraints are instinctively understood among media insiders and other executive-branch observers as mere boilerplate to be ignored in order to correctly interpret the memo’s meaning and implications. As a relatively new observer, perhaps I was naive to have taken the memo at face value. In the future, I, too, will know that a mere suggestion by the President of policy within the executive branch will be taken by the President’s underlings to be inviolable law, and the media will report it as such. I find this to be frightening and disturbing, but it seems like the best explanation. (136)