Conspiracy theorists hate it when no one pays attention. Witness last month’s letter to President Obama in which eight Republican Senators accused him of planning to circumvent the will of Congress through a regulatory grant of “amnesty” suggesting that plans were afoot in the Department of Homeland Security to make it happen. Despite their mock outrage, the letter barely made a ripple in the immigration debate. And just a few days after his speech on immigration, President Obama unequivocally stated that he wanted a real solution to our immigration crisis, rejecting both a free pass for all undocumented immigrants and a scorched earth, deport them all approach.

And now the National Review has obtained a copy of the “smoking gun” draft USCIS memo that refers to many of the issues the Senators cryptically reference in their hastily worded letter. Restrictionists and anti-government folks alike are already pointing to it as proof that President Obama intends to do an end run around Congress to grant all 10.8 million deferred action (which drastically mischaracterizes the memo). Coming just a day after the striking repudiation of Arizona’s SB 1070 by federal district court judge Susan Bolton—which represents a vindication of the Administration’s strategy to protect federal jurisdiction over immigration law—this latest “amnesty” scare is just the latest in the attempt to distract the public and derail genuine immigration reform.

The memo itself, which is clearly a draft, has no date and can’t be taken as Administration policy. The pieces have the feel of cutting and pasting. The language and tone vary from section to section and it has the names of senior officials on it—a practice USCIS ended months ago. USCIS has released a statement noting, “Internal draft memos do not and should not be equated with official action or policy of the Department.”

The memo lists a variety of ways that the Administration—working WITHIN existing law—could improve the plight of the many immigrants who have legitimate gripes with our current immigration system. What’s so wrong with USCIS revisiting a number of outdated practices and very old legal interpretations that hinder the ability of US citizens to reunite with family members, keep employers and employees from enjoying the full benefits of immigration visas designed to further business growth, and ignore both more efficient and cost effective ways of doing business? The authors of this memo deserve credit for stating the obvious but often unsaid point—USCIS can and should do more to use its existing regulatory authority to improve the delivery of immigration services.

Improve the delivery of immigration services? That job is made harder every day by Congress’s failure to act. As the Immigration Policy Center (IPC) has reported, many of the problems with our immigration system stem from out of date laws that create inefficient and broken bureaucratic systems. Good for you, USCIS, for trying to do what it can within that broken system. Ironically, the options suggested in the memo note that implementation of various proposals would take more than a year since there would have to be regulations, public comment, training, etc. In other words, in order to make any of these proposals happen, the drafters recognized that there were long and complicated regulatory processes that would have to be followed, giving Congress and the public plenty of time to weigh in.

Deferred action for limited groups of undocumented folks—like DREAM Act students—has been discussed among bi-partisan groups in Congress for some time (see this letter from Senators Lugar and Durbin to Secretary Napolitano). However, it seems pretty clear that any kind of broad attempt to defer action of all undocumented people would be costly and controversial and would probably require Congressional action in the form of appropriations. As the IPC noted last month, and as President Obama said in his speech on immigration, a wholesale effort to stop all deportations is never going to happen for practical reasons and was confirmed again by USCIS yesterday when they noted,“To be clear, DHS will not grant deferred action or humanitarian parole to the nation’s entire illegal immigrant population.”

So this is another tempest in a teapot—one that may backfire on pot stirrers for two reasons: First, the memo simply shows that the Obama Administration cares about making immigration better. Second, on the same day this was released, Senator Lindsay Graham dropped the far more controversial bombshell that he wants to introduce a constitutional amendment to eliminate birthright citizenship—something far more damaging to our immigration system and the Fourteenth Amendment than any draft memo. Doris Meissner, a former US Immigration and Naturalization Service Commissioner and senior fellow at the Migration Policy Institute, commented that ending birthright citizenship would be “against our best interests as a country” and added “there is little evidence to suggest a large number of illegal immigrants come over to the United States in order to have children. The real problem, she said, is that illegal immigrants need jobs.”

Photo by laughingmonk.