CAN D.H.S. FORGIVE DREAMERS?

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A federal judge in Dallas has dismissed a lawsuit brought by an Immigration and Customs Enforcement (I.C.E.) agent challenging the constitutionality of the administration’s directive forbidding the agency from removing (deporting) young illegal immigrants (known by their preferred designation “DREAMERS”).  Agent Christopher Crane alleged the directive put him in an untenable situation.  He is under oath to enforce the Immigration and Nationality Act (INA) as written, which requires officers to remove any alien they encounter not “clearly and beyond  a doubt entitled to be admitted.”  8 U.S.C. . 1225(b)(2)(A).  The President and the head of the Department of Homeland Security (D.H.S.), Janet Napolitano, directed I.C.E. agents to use discretion (theirs) in enforcing this mandate.  But where does this discretion come from?  After all, if Congress wanted to exempt DREAMERS from the INA, it would have said so.  But it wrote the law more broadly and did not see fit to allow D.H.S. (or I.C.E., a part of it) to write a different law.  A President who gets to use his “discretion” not to enforce laws he dislikes or dislikes in part is not carrying out his constitutional oath to enforce the laws, the job of the Executive.   If I.C.E. doesn’t have enough resources to remove illegal immigrants it should ask Congress for more money, not arrogate to itself the selection of which ones to remove.

Agent Crane believed his bosses were exceeding their authority to tell him what to do as an I.C.E. agent and sued.  He sought an injunction barring I.C.E. from enforcing the new discretionary rules.  The district judge agreed that he was likely to win his case,as the new policy was not authorized by the Act.  But  it also found that he is required to pursue his claim pursuant to the Civil Service Reform Act, which has its own remedies and cannot be pursued in a federal court.  He will need to go before a  hearing officer in Washington, and it is not clear that the officer has the power to enjoin the D.H.S. and the President from enforcing the directive.  So if this decision is affirmed on appeal, the rule of law will have been stymied.

We are always being told this is a country of “laws not men” when the men are conservatives (think of Watergate and Iran-Contra).  The sanctimonious law professors and columnists are silent now, perfectly happy to see Agent Crane not get his day in court.  Even the judge believed his hands were tied and justice was not being served in this case.  It should prompt congressional debate and hearings about executive power.  After all, this is immigration summer in Washington.  Congress is fixated on the topic.  It should care about the question of who gets to enforce the Act that it passed.  But it is not.  The decision is nothing but a footnote in law-oriented websites and has not made it into the mainstream media.  Suppose the case were the inverse, and an agent was arresting DREAMERS in defiance of the Directive.  The administration would fire the overzealous employee and I can imagine the firestorm of media coverage about I.C.E. vigilantes taking the law into their own hands.

The only good aspect of this decision is that it is unprecedented.  The opinion does not cite any authority in support of its holding that Agent Crane’s only remedy is through the the Civil Service.  Other federal judges may reach the opposite conclusion.  I hope there will be more cases like this one elsewhere around the country.