The Tijuana-San Diego border.President Obama is doing everything in his power—and arguably some things outside of his enumerated power—to limit enforcement of U.S. immigration laws. The president’s primary agenda is aimed at overcoming the legislative process through an administrative push for illegal-alien amnesty. This has involved narrowing the scope of enforcement among agencies while providing de facto amnesty for a sizable portion of the twelve million illegal aliens in the United States. Additionally, the administration wants to limit state efforts on illegal immigration through lawsuits and a scaling back of state-federal cooperation, as most recently seen with the administration’s lawsuit against Arizona. The administration’s amnesty agenda has generated intense frustration among Immigration and Customs Enforcement (ICE) and Border Patrol agents, and that frustration is spreading to the American public.

A year into Obama’s tenure, many immigration agents concluded that enforcement was being subordinated to the amnesty agenda. On June 11, 2010, ICE Union leaders issued a unanimous no-confidence vote in ICE Director John Morton. They said their action “reflects the growing dissatisfaction and concern” among ICE employees and union leaders that the agency had abandoned its core mission of enforcing U.S. immigration laws. Instead, the union statement said, the agency had been “campaigning for programs and policies relating to amnesty” that were “misguided and reckless.”

The union also raised concerns about the lack of prosecution of aliens incarcerated in local jails, noting that aliens “openly brag to ICE officers” that they are taking advantage of lax enforcement and will return to the United States within days of deportation.

The union expressed concern over “a priority of providing bingo nights, dance lessons and hanging plants” to detained illegal immigrants and a decision to prohibit ICE officers from searching the premises for weapons, drugs and other contraband, thus putting detainees and ICE officials at risk.

Since then, the union’s concerns have grown as the extent of the administrative amnesty has become clearer.

On June 17, 2011, ICE Director John Morton issued a memo on prosecutorial discretion that the ICE union called a “law enforcement nightmare developed by the Administration to win votes at the expense of sound and responsible law enforcement policy.” The union also warned that the Obama administration was implementing unwritten “secret changes” to immigration policies. In the ICE union’s press release, Chris Crane, president of the National ICE Council, warned, “Unable to pass its immigration agenda through legislation, the Administration is now implementing it through agency policy.”

In August 2011, news broke that the White House was implementing a “prioritization” plan designed to scale back deportations and limit enforcement to the worst offenders—meaning illegal aliens who had committed a violent crime in addition to the immigration violation. The new approach was outlined in a leaked USCIS memo titled “Administrative Alternatives to Comprehensive Immigration Reform.” The memo’s authors referred to the effort as a “non-legislative amnesty,” and ICE officers were instructed to consider: the person’s length of presence in the United States; the circumstances of the person’s arrival; the person’s pursuit of education in the United States; the person’s ties and contributions to the community; whether the person or the person’s spouse is pregnant or nursing. Ultimately, the goal is to limit removal efforts to only the “worst of the worst” while giving a pass to millions of illegal aliens.

According to a leaked ICE memo, DHS seeks to establish a two-phase legalization process for the nation’s illegal-immigrant population. The first phase would require aliens to be “registered, fingerprinted, screened and considered for an interim status that allows them to work in the U.S.” The second phase would allow aliens who fulfilled additional statutory requirements to become lawful permanent residents. DHS felt that even without legislation, “much of Phase 1 . . . could still be implemented, either by the Secretary of Homeland Security granting eligible applicants deferred action status or the President granting deferred enforced departure.” These plans were confirmed in an official ICE memo on June 17, 2011.

The latest development includes President Obama’s unilateral move on the so-called DREAM Act aliens, where the president has decreed, through a memo, that ICE will not deport up to 1.5 million illegal aliens who can prove they entered the United States before age sixteen and have not yet reached the age of thirty. While details of the administrative amnesty remain unclear, the White House has promised to provide these individuals with work permits.

In October 2011, the Obama administration’s effort to undermine immigration enforcement was extended to the U.S. Border Patrol, prompting a swift response from the National Border Patrol Council, a union representing more than seventeen thousand Border Patrol agents and support staff. The union expressed frustration with the administration’s priorities, which it considered to be “increasing the layers of bureaucracy” in a way that hinders Border Patrol agents in their duties. For example, agents would not be allowed to patrol transportation hubs—airports, train stations and bus stations within one hundred miles of the border—unless there is evidence of an existing threat. Bureaucratic red tape makes it nearly impossible to get an operation in those areas approved; therefore, apprehensions declined, allowing Border Patrol management to contend falsely that border security is improving and amnesty is a proper policy.

But U.S. borders and ports of entry remain porous and dangerous. Many state legislators, deciding not to wait on Congress, have implemented laws designed to discourage illegal immigration. The Obama administration, seemingly viewing state action as a threat to its administrative-amnesty agenda, has filed suit against numerous states. With the help of high-immigration activist groups, the people of Alabama, Arizona, Indiana, Georgia, South Carolina and Utah now find themselves the targets of lawsuits.

With one of the fastest-growing illegal-immigrant populations in the country, Arizona has taken the lead on passing anti-illegal-immigration laws, including “S.B. 1070,” designed to “discourage and deter” illegal immigration. In the administration’s suit against Arizona, it argued that federal priorities preempt Arizona from enforcing the law. While the Supreme Court did not uphold S.B. 1070 in its entirety, it did uphold Section 2(B), arguably the law’s most important section. It requires Arizona law enforcement to make a reasonable attempt, when practicable, to determine a person’s immigration status during a “lawful stop, detention, or arrest” if there is a reasonable suspicion “that the person is an alien and is unlawfully present in the United States.” Three other sections were found to be onerous and preempted by federal law.

As a result of Section 2(B), Arizona will now likely alert federal authorities about a greater number of illegal immigrants, though it seems unlikely that the change will have any effect on the Obama administration’s open-border agenda. Within hours of the Supreme Court’s decision, the White House announced that it will not remove any illegal immigrants reported by Arizona unless the individuals have committed a violent crime. It calls this policy “prosecutorial discretion.”

Despite the administration’s efforts, Section 2(B) will result in an extensive record of Arizona-ICE communications, which will create a public-relations nightmare for the White House if an alien that ICE refuses to pick up goes on to commit a horrible crime after being released onto the streets.

It is important to remember that the courts have left intact other provisions of S.B. 1070. One allows Arizona residents to sue jurisdictions in the state that are acting like sanctuaries for illegal aliens. Another prohibits jurisdictions from refusing to provide information on immigration status for the purpose of determining eligibility for drivers’ licenses and other public benefits. Still another requires law enforcement to alert federal immigration authorities when an illegal alien convicted of a state crime is released from jail. Other provisions make it a crime for a person to “transport or move an alien in Arizona in a means of transportation” or “conceal, harbor or shield an alien from detection in any place in Arizona to induce an illegal alien to reside in Arizona.” Another makes it a crime to stop one’s vehicle in such a way that impedes traffic so that one can “attempt to hire or hire and pick up passengers for work at a different location;” the provision also makes it a crime for the person being solicited to enter the vehicle. With these and other provisions in effect, defenders of illegal immigrants likely will continue to file lawsuits against Arizona.

Furthermore, the White House has rescinded the state’s 287(g) agreements, ending a program that allows local authorities to effectively investigate drug smuggling, human trafficking, cartel activity and other cross-border crimes.

Looking Forward

The Obama administration’s open-border effort can be overcome by a combined, pro-enforcement effort on the part of states and Congress. States need to be given more direction from Congress along with some assurance that they can move forward with immigration laws without fearing a lawsuit from the White House. Since preemption is a major issue, Congress should amend federal law to provide states greater opportunity for cooperation with the federal government; some simple amendments could help Arizona overcome parts of the recent Supreme Court ruling on S.B. 1070.