The Dream Act had been kicking around Capitol Hill for a decade but had failed to be enacted. The Dream Act sought to give effective amnesty (couched as conditional permanent resident status) to illegal aliens who graduate high school, can prove their good moral character and either serve two years in the American military or attend college for two years.
In the 111th Congress, Senate Majority Leader Harry Reid (D-NV) brought it up seemingly to positively position himself with Hispanic voters during his contentious re-election. The Dream Act failed in its cloture vote by 56-43 vote in September, 2010 when it was added to the Don’t Ask Don’t Tell Vote. Senator Dick Durbin (D-IL) immediately introduced the Dream Act as stand alone legislation, but the bill only had two co-sponsors and was defeated. During the Lame Duck session, House Democrats passed the Dream Act, but the rushed partisan cram down again failed in the Senate. In May 2011, Senate Majority Leader Reid reintroduced the Dream Act, but it was destined to go nowhere when previous co-sponsors, such as Sen. John Cornyn (R-TX), Sen. John Kyl (R-AZ) and Sen. Lindsey Graham (R-SC) refused to sign on again unless there were amendments increasing immigration border enforcement.
Not that the legislative process matters for immigration issues, as President Barack Obama issued an Executive Order in the form of a memo to Immigration and Customers Enforcement (ICE) Director John Morton that agents are now to use “prosecutorial discretion” with regards to immigration issues. ICE Agents now should consider factors such as a detainee being: a veteran; long-time permanent resident aliens; residing in the U.S. since childhood; minors and elderly; nursing or pregnant women; those with serious health conditions; and those suffering from serious mental or physical disabilities. So much for the fools who tried to work within the system for legal immigration to America. Obeying the law is optional for both the malfeasors and the enforcers. While outside observers are led to think that ICE has no standards regarding immigration, the memo does mention some negative factors like: those posing clear security risk; gang members; serious felons; and those with egregious immigration violations.
The wording that introduces the prosecutorial discretion is key–“The following positive factors should prompt particular care and consideration”. While it is not mandatory sine qua non “shall”, it is stronger than a discretionary “may”. This is a not so subtle directive from the Oval Office not to bother enforcing immigration law in most instances. It is dubious that localities that are actually enforcing the laws about illegal immigrants, such as in Prince William County, VA or the state of Arizona, will have any assistance of federal agents in their own area of enforcement.
The new ICE provisions should make Pulitzer Prize winning journalist Jose Antonio Vargas feel more secure about his immigration difficulty. But Vargas’ fraudulent immigration status did not seem to bother either his former employer (the Washington Post) or the Secret Service during White House interviews.
If any agency could use some prosecutorial discretion, it should be ICE’s sibling in the Department of Homeland Security, the Transportation Security Administration. The TSA can not bring itself to apply prudent criteria about transportation threats, lest they be accused of racial profiling. So the flying public has to endure invasive security theater, which includes a 45 minute interrogation of a 95 year old woman in a wheel chair who was wearing an adult diaper. Since Umar Farouk Mutallab, the young Nigerian who was the Fruit of the Kaboom attempted bomber from Christmas 2009, tried to secret explosives in his underoos, so there is no discretion if an elderly, frail passenger has a pantload–if she is chosen, she must get the full treatment. And Senator Schumer (D-NY) wants to extend the TSA touch to trains too.
After the Obama Administrations decision about not enforcing aspects of the Defense of Marriage Act (DOMA) because Obama thinks that it is unconstitutional. Hence selective enforcement for judicial matters was a tool in the Obama Administration’s toolbox. Now, effectively re-writing Immigration law by selective enforcement obviates the legislative branch.
While the DREAM Act may be over, the nightmare has only begun. When the Roman Republic transitioned into an Empire under Augustus in 27 BC, the Senate still existed but it effectively became neutered. It seems that history will teach us nothing.