This week, DHS Secretary Janet Napolitano was clearly channeling her predecessor, Michael Chertoff, as she touted her Department’s remarkable progress in enforcing immigration laws. Not only did she proudly announce that DHS had a record-breaking year for deportations, but she clarified that local law enforcement cannot opt out of the Secure Communities program once it’s in place. Moreover, she made it clear that DHS is not a warm and fuzzy place, noting that the separation of families couldn’t be helped until we had comprehensive immigration reform. She also gave a resounding “no” when asked if the Department contemplated any major deferral of removal programs as suggested by a series of leaked memos. And, virtually repeating the mantra of Secretary Chertoff, Napolitano insisted, “This department is about enforcing the law that we have.” But concerning administrative fixes to our immigration system, Secretary Napolitano and the Obama Administrative should be taking their cue from the Bush administration.
In a press conference following the failure of the 2007 comprehensive immigration reform (CIR) bill, Secretary Chertoff and Commerce Secretary Carlos Gutierrez announced the Administration’s post CIR game plan, and Chertoff stated:
Let me be very clear about what we’re doing here. I have said with absolute consistency, from before we started the immigration reform effort earlier this year, that I was determined to enforce the laws of this country to the utmost of my vigor. And we’ve done that since we’ve—at least since I’ve been Secretary. We had hoped that immigration reform on a comprehensive basis would give us a much wider set of tools; we don’t have that. We still think Congress can act on it. But until the laws change, we are enforcing the laws as they are to the utmost of our ability, using every tool that we have in the toolbox, and we’re going to sharpen some of those tools.
Then, as now, Cabinet members are determined to enforce the laws on the books. There’s one big difference, however. Back in 2007, Chertoff and Gutierrez announced a 26 point plan to use administrative measures to “sharpen the tools” available to them. While some of these administrative measures were aimed at increased policing of immigration violations—making E-verify mandatory for all federal contractors, using Social Security No-Match Letters as a way to hold employers liable for hiring workers illegally—many of the proposals involved changing regulations on the legal visa side of things to make existing worker programs more efficient, at least from the Administration’s perspective. Secretary Gutierrez said:
So we’re going to do everything we can that is allowed by the law on an administrative basis, by the executive branch. And that includes security, but it also includes making these temporary worker programs workable. Today they’re not being used because they are not workable. So we’ll analyze them, review them, the Department of Labor will do that. And we’ll see if we can make them more workable to help business have a legal path to hiring workers and have a legal work force.
Nor was this just about tweaking programs. The list of planned actions (many of which were sharply criticized) included revamping the H-2A Agricultural Seasonal Worker Program and H-2B Program for Non-Agricultural Seasonal Workers, extending visa terms for professional workers, and administrative reforms to visa programs for highly-skilled workers.
In other words, in the absence of Congress’s failure to act, the Administration has to take matters into its own hand.
Notice any difference between the Bush and Obama administrations here? I do, and it is not a difference that looks good for President Obama. When the Bush administration didn’t get from Congress what it needed to do its job, his Cabinet unapologetically went forward with every regulatory and policy maneuver they could muster. And while it was decidedly heavy-handed and enforcement-oriented, these efforts included changing the benefits side of the equation. The 26 point plan was not popular and some of the proposals were successfully challenged in court. Others were partially implemented but later rejected by the Obama administration. But nobody apologized for trying to use all the tools in their toolbox to implement their version of immigration policy.
So, in light of this, how can Secretary Napolitano so quickly and definitively reject administrative action that might help people and her agency become more effective? The memos referred to during the press conference were attempts by USCIS and DHS staff to lay out possible administrative actions that could improve benefits programs, use greater prosecutorial discretion, and generally try to reduce the impact of deportations that separate families and result in useless waste of human capital and resources. Is that such a bad thing?
Ideally, the Obama administration would take a page from its predecessor and embrace a vision of immigration reform. You can’t tell everyone that you are for comprehensive immigration reform and that you feel the pain of the most vulnerable families and communities and at the same time dismiss, out-of-hand, the possibility that the current laws on the books can be interpreted differently. Nor can you reasonably argue that regulations couldn’t be put in place that would make programs more workable, feasible, and serve customers better. The Bush administration had no problem saying this in order to try to court favor with its supporters. Why is the Obama administration so afraid to own up to the fact that it has been trying to find ways within the law to give relief to some of those people it is so proudly deporting?
The contradiction and the contrast leave a bitter taste. Rather than hide behind the number of deportations as a way to minimize the criticism of leaked memos and creative thinking, the Obama administration needs to reverse its messaging. Lead with the idea that Congress has failed the American people and the Administration will do everything in its power to make the enforcement of the laws as fair, rational and humane as possible.
Leaning into this, rather than running away from it, might give people some hope that we actually have a chance at reforming the system. Otherwise, as the similarities between the Napolitano and Chertoff/Gutierrez press conferences make clear, it’s just the same old same old.
Photo by the White House.