Obama claims that he lacks the funds to enforce immigration law. So, congressional opponents should make sure he gets more money in the current budget negotiations.
Administration lawyers cite a severe shortage of funds as the legal justification for Obama’s selective enforcement of only the highest priority cases. More money would knock the legs from under this legal position, enhancing the chances of victory on the merits in the court case challenging Obama’s order (Texas v. U.S.).
But Obama’s real policy is not selective enforcement. Rather it is almost complete non-enforcement. In 2014, only 316,000 undocumented aliens were removed (deported), but even this number is grossly exaggerated. It includes over 214,000 “individuals apprehended by CBP Border Patrol agents and then processed, detained and removed by ICE [Immigration and Customs Enforcement].” Interdiction at the border does not represent enforcement of immigration law. Indeed, interdiction renders enforcement of immigration law unnecessary.
Enforcement of immigration law involves those who cross the border successfully. Some 102,000 such individuals were removed in 2014 — 87,000 of them were convicted criminals. Here again, the removals do not constitute enforcement of immigration law. They represent enforcement of criminal law.
By process of elimination, then, ICE deported only 15,000 undocumented aliens for violation of immigration law. This minuscule number is evidence of almost complete non-enforcement of immigration laws.
The administration camouflages its de facto non-enforcement policy behind a notion of futility. It asserts a maximum removal capacity of 400,000 in the face of an overwhelmingly higher estimated number of illegal alien residents — 11.3 million. Its aim is to imply that enforcement is an impossible challenge.
But that’s not the real story. As of year-end 2014, ICE maintained a “non-detained docket” of 1.9 million illegal aliens who have been apprehended but not detained or removed. This number is up 100,000 from the prior year. Almost 900,000 of the docketed aliens are subject to a “final removal order,” meaning that they have exhausted all judicial appeals. They could be removed quite quickly and easily and in conformity with the fairest notions of law enforcement since they have had their day in court.
The best way to redress Obama’s unconstitutional non-enforcement policy is for Congress to provide him a significant increase in funding. Within ICE, the Enforcement and Removals Operations unit carries out removals. ERO’s budget in 2013 was a meager $2.8 billion. ERO’s budget since hasn’t been disclosed, but ICE’s overall budget decreased from $5.6 billion in 2013 to $5.4 billion in the current fiscal year, so ERO was probably squeezed as well. Congress should triple or quadruple the budget for the enforcement and removals unit.
President Obama is abdicating his constitutional duty to enforce the law. Like many Americans, he may disagree with current immigration law, but he must enforce it. It is the province of Congress, not the president, to make and change the law.
Red Jahncke is president of The Townsend Group Intl, LLC, a business consulting firm in Connecticut. “As You Were Saying” is a regular Herald feature. We invite readers to submit guest columns of no more than 600 words. Email to firstname.lastname@example.org. Columns are subject to editing and become Herald property.