South Texas College of Law professor Josh Blackman, in an article published in National Review, debunked the Justice Department's claim that Pres. Obama's unconstitutional amnesties are about national security. The Justice Department tried to argue before Federal District Judge Andrew Hanen last week that Obama's amnesties are an attempt to bring illegal aliens "out of the shadows" to strengthen national security and that work permits and other benefits will be offered as an "incentive" to sign up.
Blackman wrote "because halting millions of deportations was not reason enough to coax immigrants to 'come out of the shadows,' the president will approve virtually every single applicant for work authorization, Social Security benefits, and even the earned income-tax credit, as an 'incentive' to sign up. It’s all part of keeping our nation secure." Blackman added "[a]bsolutely nothing in Judge Hanen’s ruling prevents DHS from protecting border and national security."
Last week, Judge Hanen heard arguments regarding the government's failure to disclose the fact that the Department of Homeland Security (DHS) renewed work permits for 180,000 DACA recipients under the new guidelines announced in November before the February 19 effective date. Blackman focused on the following exchange between Judge Hanen and DOJ attorney Kathleen Hartnett.
As Hanen summarized, if a DHS agent “stops a person, they can show them their card, and they’ll know that they don’t have to pursue that person.” Is that right, the judge asked? Harnett replied, “Yes, your Honor.”
Hanen parried with a devastatingly simple question: “Why aren’t you doing that now? I didn’t enjoin you from doing that.” He noted that the government could offer some other form of identification that would allow aliens to prove they are not dangerous, but without granting them work authorization and myriad other benefits. “There’s nothing that’s stopping the Department of Homeland Security from saying: All right . . . We’re going to do a background check on you, and we’ll give this card that says for three years we’re not prosecuting you.”
Hartnett admitted that the Administration could indeed do as Judge Hanen suggested but said that DHS decided that offering incentives like work permits and social security cards would encourage more illegal aliens to participate.
Blackman then broke down Judge Hanen's ability to completely dismantle the government's argument.
Hartnett’s answer to Hanen’s commonsense alternative was striking: The president chose to offer work authorization to millions to “provide an incentive for people to come out and identify themselves.” The lawyer repeated that “work authorization is a large incentive for getting people to be able to come out of the shadows, as it said, and to identify themselves.” In other words, an assurance to not deport an immigrant who is here unlawfully was not a sufficient justification — it was necessary for the president to hand out 5 million new work authorizations. And remember, this entire regime was created to provide an administrative convenience to DHS agents who encounter immigrants and have to decide whether to investigate them or not. As an aside, any immigrant with a criminal background can be easily identified by checking his or her fingerprints — which takes a few moments.
Judge Hanen was incredulous. He questioned why “just an offer to stay in the country without being prosecuted” was not enough, but that the government has “to give them some extra incentive?” Hanen added, “I mean, we’re basically bribing the people to stay in the country legally?” Though Hartnett tried to distance herself from this obvious point, she inevitably conceded it. She asserted that the “law-enforcement officials that run the Department of Homeland Security had made the judgment that [DAPA was] the right way to get people to come out [and] account for themselves.” But what about the simpler alternative where immigrants are not “bribed”? The government lawyer responded that “I think the judgment has been made that that’s the way that the program would best work.”
You can read the full National Review article at NationalReview.com.
Updated: Wed, Oct 11th 2017 @ 3:27pm EDT