Championship Backslide

One really must wonder why Speaker of the House John Boehner does not suggest to his patrons that they take his job and…well, you know. How thankless can a task get? And all the man wanted was to come out of the current session looking a little, just a little, less like an unadulterated flack then the rest of his caucus by shepherding even timid immigration reform through his chamber. And maybe in the process arrest his party’s plunge in the esteem of everyone beyond the get-off-my-lawn crowd. He even had his moment in the sun of respectability last summer when, in a surge of insurgency, he berated selected extremists within his party, going so far as to liken one of them to the digestive track’s termination point. (That particular individual had claimed that most undocumented immigrants were drug mules, an assertion he pulled from, well, the termination point of his digestive track. Try to believe that such a specimen is actually a member of the U.S. House of Representatives. Go ahead, I dare you.)


One almost feels sorry for poor Mr. Boehner, who must now sleep in a bed of his own making, tucked in by his fellow Republicans to the point of suffocation.


The operative word, though, is “almost.” Because just when you are lulled into thinking that policy might trump posturing in the daily exercise of the duties of his office, Mr. Boehner retreats to the vacuous sloganeering of those who might remove him from his Speaker’s perch if he does not carry their water. So it comes as no surprise that his flirtation with the notion of passing actual immigration legislation got snuffed out, pronto, by the merchants of Obama-phobia peddling sound bites they believe will lead them to absolute power come November. (With a little help from Citizens United, gerrymandered districts and a preponderance of currently Democratic seats in play in the 2014 Senate races.)


We saw this backslide coming, and if there is any surprise at all, it is the breakneck speed with which immigration reform was thrown under the bus of intransigence. The signs were all there. Let’s review the progression, shall we?


  • In the year since the Senate passed S. 744, its comprehensive immigration reform bill, even its putative Republican backers like Senator Marco Rubio of Florida quickly lapsed back into chanting the “no amnesty for lawbreakers” mantra with abandon, foreclosing a path to citizenship, ostensibly in order to make some version of reform palatable to the ultra-conservatives who supported his Senate candidacy as consistent with Tea Part doctrine.

  • As a year of an astonishing dearth of legislative accomplishment came to an end, the House signaled to its media acolytes that the new session would be different from the one whose signature achievements were 40-plus votes to repeal the Affordable Care Act, a bungled attempt at blackmail by threat of government shutdown and discovering Benghazi on Google Maps. As the new year began, it had even produced the Herculean effort of passing a budget, patting itself on the back for replacing a disastrous sequester of its own making with a mediocre spending and revenue bill. Building on the momentum of having mustered the energy to hobble together a budget, the House declared itself poised to legislate immigration reform. It was all a head fake, and we should have known it would be. Sure, a farm bill also passed that was not quite as mean-spirited as the sadistic fantasies conservatives proposed in December, yet remained an exercise in gratuitous ostracism toward recipients of food assistance. A foretaste of what was to come.

  • If one listened closely to the messages coming from the House leadership, it was quite clear that immigration reform in its eyes was primarily a vehicle for advancing an enforcement-centric approach, which became increasingly explicit as the days rolled by. In the first instance, John Boehner teased the public, the White House and the Senate leadership with a stated willingness to adopt a version of reform which, while blocking a path to citizenship other than for “Dreamers,” would nonetheless condone some form of conditional legalization for the undocumented. With Pew Research reporting, unremarkably, that citizenship was less important to the immigrant community than lifting the threat of deportation, everyone seemed eager to swallow the bait. Upon examination, the proposals coming from House Republicans contained poison lethal enough to effectively kill a herd of reforms, and so crude in its formulation as defy belief that whoever drafted these clauses was actually serious. One condition stipulated that civil immigration offenses be made crimes, an idea which would transfer immigration litigation from the executive branch to the judiciary. (See my previous blog post for further explanation.) The other would allow state and local governments to enact their own immigration statutes. If you enjoy horror stories, try, just try, to imagine would that would look like. My own deduction was that these transparent schemes were so many bargaining chips to be swapped against the reformists’ abandonment of the path to citizenship.

  • As immigration reform emerged as a real possibility, what with Democratic lawmakers and the President giddy over the prospects of a compromise and Boehner romancing the notion of crafting bipartisan approval, the Speaker’s masters flexed their muscles. Immigration reform, they proclaimed, would highlight a policy disagreement within the party, and dim its unifying focus on crippling the President just months ahead of the mid-term elections. Speaking of masters, it is not that business interests disfavor immigration reform. They don’t. (For instance, a new report from the American Farm Bureau underlines the costs to American agriculture and consumers of the enforcement-heavy approach to immigration law.) However, and not to stereotype, the same business interests have a diverse agenda with items Republican legislators are eager to serve, from relaxation of regulatory standards to taxation indulgence, so a delay in implementing reform until after the election is a sacrifice many of them (not all) can live with. With that in mind, the GOP’s handlers in the media, the National Review first out of the gate, urged Speaker Boehner to get his priorities straight: party first, policy subservient. It was only a matter of time…

  • On January 30, Speaker Boehner released a short text titled “Standards for Immigration Reform” that is remarkably harsh in its tone and again skews the Republican position toward an enforcement-centric approach. True, it nods in the direction of the economic needs of technology-driven sectors and agriculture that the surge in xenophobia undermined during the recession, and we all know who capitalized politically on that. It envisages citizenship for Dreamers, although not without adding open-ended restrictions. It also omits mention of specific conditions the leadership had previously outlined, in particular the criminalization of civil immigration offenses, and state and local authority in immigration enforcement. (The “Standards” do not specifically abandon them.) The closing paragraph is the most telling, as is its heading: “Individuals Living Outside the Rule of Law.” Not content to precluding a path to citizenship, the language tars the undocumented as wholly undesirable, parasitical and sinful, in keeping with the flawed axiom that immigration has benefited the immigrant alone. The “Standards” insist on legalized residency being contingent on admissions of guilt and acceptance of a status as social pariahs. You can see where this is going.

  • The reprise of the rhetorical flourishes that have characterized restriction-ist discourse for the last decade set Mr. Boehner up to fold like a murphy bed to the demands of his right flank. The party, so the lyrics went, had already made more “concessions” than the upper limit authorized by its dominant extreme, i.e., zero: a budget deal to end the meat-cleaving sequester and a farm bill with a mere $8.6 billion in cuts to the food stamp program (To the literal-minded: I am being sarcastic.) Damned if it were going to allow a popular immigration reform initiative to progress to a presidential signing ceremony with the TV cameras rolling. All that was needed to seal the sabotage was lipstick for the pig, a justifying slogan devoid of any actual truth.

  • The winning formula, which the House Speaker and his caucus were conditioned to chant in perfect unison is that “President Obama cannot be trusted to enforce the law,” and, consequently, if new statutes were passed, he would circumvent their enforcement provisions. The beauty of the slogan is its multipurpose feature. The same fraudulent affirmation can be deployed in any policy discussion: Obama does not respect the rule of law!


So now we have come full circle, from the GOP attempting to dampen its legacy of antagonism toward immigrants, to the leadership actually considering reform legislation, meeting the foretold push-back of those fearful that debating immigration might distract from the unifying theme of blind Obama-phobia, to spicing the Republicans’ “Standards of Reform” with sanctimonious opprobrium of immigrants in the hope of countering the resistance, and finally to wholesale retreat from reform. Voilà. Mission accomplished.


The claim that Obama has refused to enforce the immigration statutes is so false as to be laughable. In the eyes of many, including mine, he has leapt overboard on enforcement. Consider the actual data on enforcement and deportation: 1.8 million people have been removed since Obama took office, and although the number dropped about 10% from 2012 to 2013, in no year of Obama’s presidency have his deportation numbers been lower than those experienced during the Bush administration. Needless to say, immigration advocates are not amused. Further, “the latest available data from the Justice Department show that during FY 2013 immigration prosecutions reached an all-time high, with new cases being filed against 97,384 defendants. This number is up 5.9 percent over the past fiscal year, and up 22.6 percent over the past five years, according to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC) and obtained from the Executive Office for United States Attorneys under the Freedom of Information Act.” (I am quoting the TRAC web site at the Syracuse University). These are but two indicators of zealous enforcement of the immigration statutes by the Obama administration. There are others, and even if some enforcement indicators show a year over year contraction, by no means has the current administration come close to fitting the accusation that it has sought to evade the commandments of immigration law, as deplorable as they might be.


There have been two initiatives under Obama that have been fodder for controversy mongering. One is the administration’s decision to define prosecutorial discretion in immigration cases, in fact a means of assigning priority to cases seeking removal of the most undesirable persons among candidates for deportation. Why this is controversial is a mystery. Just about every agency of government, especially law enforcement, sets priorities for its actions and always has, for the simple reason that no government department has infinite resources. An organized crime lord will generally get more attention from the Justice Department than a petty crook, a 3-alarm fire quicker response than a treed cat. Why would immigration enforcement want to operate differently? To top it off, TRAC also reports that only 7% of removal cases have been deferred under the updated prosecutorial discretion rules. But, hey, what’s data when we can tweet a catchy slogan?


Another fabricated flap was over DACA, or Deferred Action for Childhood Arrivals. The program has now benefited close to a half a million immigrant kids whom even most (not all) conservatives now suggest should not be persecuted. However, when DACA was announced prior to the 2012 general election, the restrictionists leveled the habitual accusation: Obama, with DACA, was granting “amnesty to lawbreakers.” The grant of relief (it was not an executive order) simply stated that until further notice the administration would refrain from going after kids in school. It provides no path to formally legalized residency, let alone citizenship, and is revocable at any time. (Details, details.) Admittedly, the administration was eager to commit an act of common decency in delayed response to the glaring indecency of the Senate minority’s filibuster of the Dream Act in 2010. That Obama sought a partial remedy to Congressional inaction does not make a grant of relief an abuse of his office.


The current addition to conservative dogma, that Obama “cannot be trusted” to comply with the rule of law, derives, conveniently, from his State of the Union pronouncement that he would use his executive authority to fill some of the void created by Congressional stasis, to the extent that the exercise of such authority is legitimate by statute and the Constitution.


This rather modest assertion of executive prerogative was greeted with bogus howls alleging tyranny and dictatorship. Let alone that even if Obama did wish to overstep his authority, he is held in check by public opinion, the courts and, perhaps most powerfully, the bureaucratic mechanics that translate intentions into action. A gearshift does little good without coupling to an actual transmission. There is other evidence of the absurdity of the claim that the President is overstepping his bounds. At latest count by the American Presidency Project, Obama has issued fewer executive orders in his first five years in office (168) than any of his predecessors since, and including, Franklin Roosevelt, with the one exception of George H.W. Bush (166) who only served four years. Even more revelatory perhaps than numbers, is Obama’s consistent deference to the limitations of his office, as expressed, willfully or not, in his recent interview with The New Yorker Magazine’s David Remnick. (See “Going the Distance,” The New Yorker Magazine, January 27, 2014)


Obama’s meticulous obeisance to the formal boundaries of his authority can be infuriating to his supporters, particularly when it leads him not only to refrain from action, but to engage in conduct his allies deem reprehensible. For instance, many liberals, myself included, are dismayed by the expansive interpretation of the Patriot Act by the NSA that sanctions collecting massive amounts of data on communications among Americans and on their Internet usage. That Presidents, historically, are disinclined to renounce components of their power once in office is one plausible explanation. However, to me, it is not the dominant one. Rather, I suspect that Obama was reluctant to disable a putative (although ultimately ineffective) national security instrument created by the Congress lest he be accused, now or in the future, of being derelict in his duty to protect the homeland with the full set of tools Congress placed in his hands. On the flip side, Obama has resisted calls to invoke the 14th Amendment to lift the debt ceiling out of deference to a conflicting Congressional claim of authority over debt issuance by the government.


All this to demonstrate that the contention that Obama cannot be “trusted to follow the rule of law” has no basis in fact, either with regard to immigration specifically or to other policy areas. Not to put too fine a point on it, but it is a deliberate, malicious lie.


But I digress.


So what to make of all this, and what is the likely impact on the future of immigration reform? I will contend that the public demonstration of openness on the part of the political party that had aligned itself with the preposterous notion of “self-deportation” and the anti-immigrant bravado of Sheriff Joe Arpaio was bound to deflate once pin-pricked by opposition from within its own ranks. In other words, a backslide was inevitable, and the sequence of events virtually pre-scripted. That does not make it any less regrettable.


One might imagine that political shadow boxing will have little substantive impact in the long run, and that once the 2014 legislative contests are behind us, either Republicans will have lost their majority (not likely) or will pivot back toward immigration reform. After all, there is an aura of inevitability around immigration reform, akin to that which has pushed the country toward expansion of gay rights. An optimist might even imagine a shift occurring after primary season with an eye to Latino and Asians voters.


There are a few problems with this rosy scenario. For one, the GOP has returned to embracing, with strikingly harsh rhetoric, an enforcement-centric approach that its restrictionist wing will not readily allow the leadership to shake. Second, the Senate bill, S. 744 is being left to calcify. As I have noted, the bill is far from ideal, but it was thoughtfully crafted and contains key reformist provisions, including a path to citizenship and a more measured approach to deportation of legal immigrants with minor police records than is permissible in the current code, last revised in 1996. Third, while economic conditions are not as dire as they were in 2010, a year notable for anti-immigrant political posturing and attempts at immigrant repression at the state and local levels, we are not out of the woods. True, an improving economy and construction sector on the heels of a sharp decrease in net immigration across the southern border, followed by the political awakening to the influence of Latino and Asian voters have tended to soften the anti-immigrant drumbeat. However, the deliberate conservative campaign to constrain economic growth and social mobility could result in a rekindling of anti-immigrant sentiment easily harnessed to deflect attention from the root causes of economic and social regression. That would lead us back to square one, to the resurgence of neo-nativism and of public officials all too eager to exploit it. In short, unlike issues such as marriage equality and legalization of marijuana, immigration reform is eminently subject to the business cycle.


And time is not necessarily on its side.


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