We already know that the Obama Administration is violating the law even on its own terms. But it got the facts wrong too. In fact, the legal report written by Karl Thompson, Principal Deputy Assistant Attorney General at the Office of Legal Counsel, is so far off-base that it could have been written as a kind of parody. But since the Regime is serious, Thompson [Email him] needs to learn his fancy title doesn’t make him immune from accountability—and the Republican Party needs to impeach him if it is at all serious about opposing the President’s coup.
The first lie coming from Thompson: that there are “approximately 11.3 million undocumented aliens in the country.” [The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, by Karl Thompson, Department of Justice, November 20, 2014] Actually, there are likely more than 20 million illegals in the country.
More importantly, the Obama Administration has so restricted interior enforcement—the arrest of illegals inside the United States—that ICE deportations “have plummeted from a peak of about 236,000 in 2009 to about 100,000 in 2014.” [ICE Enforcement Collapses Further in 2014, by Jessica Vaughan, CIS, October 2014] The Administration doesn’t lack “resources” to enforce the law, it lacks the will—even by its own admission (above) that it could be deporting hundreds of thousands more illegals a year.
Besides, the Eisenhower Administration proved that over 1 million illegal aliens can be arrested and deported a year, not including those who leave through attrition through enforcement. That was accomplished with only a few hundred Border Patrol Agents and Immigration and Naturalization Service Special Agents. Now, there are more than 30,000 or so Department of Homeland Security officers and agents available.
An even more critical example of Thompson’s use of misdirection: his use of “regulations” to justify President Obama’s suspension of the law.
To the uninitiated, regulations and laws seem like the same thing. However, this is the way it is supposed to work: Congress creates laws—and agencies create regulations to implement that law. “Regulations” can’t trump legislation.
Yet Thompson argues in his report that specific statutes allow agencies to simply suspend enforcement of immigration laws. He states,
Under decades-old regulations promulgated pursuant to authority delegated by Congress, see 8 U.S.C. §§ 1103(a)(3), 1324a(h)(3), aliens who are granted deferred action—like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants—may apply for authorization to work in the United States in certain circumstances, 8 C.F.R. § 274a.12(c)(14) (providing that deferred action recipients may apply for work authorization if they can show an “economic necessity for employment”)Let’s break this down:
(a) Secretary of Homeland Security
(3) He shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.
There’s nothing here about illegal aliens obtaining work authorization.
(3) Definition of unauthorized alien
As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either
(A) an alien lawfully admitted for permanent residence, orHowever, what does subsection 8 USC 1324a (h)(1) just above it say?
(B) authorized to be so employed by this chapter or by the Attorney General. [Emphasis added]
(h) Miscellaneous provisionsWhat does this mean? Only authorized aliens are entitled to employment and documentation. Neither the Attorney General nor the Secretary of DHS can authorize employment for an illegal alien. They can only provide documentation for an authorized alien.
In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.
And what does the law say about employing “unauthorized aliens?”
8 USC 1324a reads,
(a) Making employment of unauthorized aliens unlawfulThis law has not been changed. What Thompson is essentially claiming is that the Attorney General can trump the law by issuing a regulation. But, legally, he can’t.
(1) In general
It is unlawful for a person or other entity—
(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or
(B)(i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section
Let’s look at one final part of the legal justification Thompson offers. He cites sub-sections 10 and 11 of 8 CFR Section 274a.12(c) (14) (Code of Federal Regulations, or CFR). These read:
(10) An alien granted withholding of deportation or removal for the period of time in that status, as evidenced by an employment authorization document issued by the Service;Notice this is much clearer than the statutes cited by Thompson above. There’s a reason for this. These aren’t laws, merely regulations, which Thompson is simply asserting exist.
(11) An alien whose enforced departure from the United States has been deferred in accordance with a directive from the President of the United States to the Secretary. Employment is authorized for the period of time and under the conditions established by the Secretary pursuant to the Presidential directive…
But is there a statutory fig leaf that Thompson can use to justify all this? Well, Thompson says that,
…aliens who are granted deferred action—like certain other categories of aliens who do not have lawful immigration status, such as asylum applicants—may apply for authorization to work in the United States in certain circumstances…Of course, “aliens granted deferred action” are not “like other certain categories of aliens who do not have lawful immigration status” and yet are allowed to work. Why not? Because those “other categories” were given their status through the law—not by invented regulations.
This is easily seen in some of the other sections of the regulations Thompson claims to cite. The regulations reference the authorizing legislation and what it applies to. For example, notice the careful statutory basis of 8 Code of Federal Regulations 274a.12 with references to the authorizing legislation (The Act referred to is the Immigration and Nationality Act of 1952, as amended):
(3) An alien admitted to the United States as a refugee pursuant to section 207 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service;Here, Congress has authorized employment of certain groups of aliens by statute. This is how government is supposed to work.
(5) An alien granted asylum under section 208 of the Act for the period of time in that status, as evidenced by an employment authorization document, issued by USCIS to the alien.
(12) An alien granted Temporary Protected Status under section 244 of the Act for the period of time in that status, as evidenced by an employment authorization document issued by the Service;
But Thompson somehow takes this and transforms it into a magical ability for the Administration to grant illegals the ability to legally work in the United States with “regulations.” He invents a status of “deferred action” that doesn’t exist in the law. This is not so much a legal opinion as a scam.
And so is Obamnesty. There’s no statutory basis for what the President is trying to do. Nor is the Regime really pretending there is.
Impeaching Obama is obviously necessary. But the GOP can start with something smaller. It can impeach Karl Thompson.
The blogger Federale (Email him) is a 4th generation Californian and a veteran of federal law enforcement, including service in the legacy Immigration and Naturalization Service, the Department of Homeland Security, and other federal law enforcement agencies.
Federale's opinions do not represent those of the Department of Homeland Security or the federal government, and are an exercise of rights protected by the 1st Amendment to the Constitution of the United States.