In 1996, the last time Congress passed a big package of immigration reforms, a class of immigrants with deep roots in the United States—some authorized, most not—became collateral damage. They stood to be kicked out of the country forever, and sent abroad to strange lands.
You can read about the plight of a subset of them in this incredible old Washington Post story. These were people who hadn't become citizens by sheer oversight: Adopted children who were brought to the country at a young age, legalized but never naturalized, and who went on to commit relatively minor infractions, which, for purposes of the 1996 law, amounted to “aggravated felonies” requiring their deportation.
The episode resurfaced briefly in 2011, when Republican Representative Lamar Smith, then chairman of the House Judiciary Committee, introduced legislation to dramatically limit President Barack Obama’s discretion over immigration policy. In response, Democrats dredged up a letter Smith and other congressmen sent to Attorney General Janet Reno in 1999, asking her to intervene on behalf those facing unintended deportation. They sent it to reporters, to nail Smith for hypocrisy, and scored a direct hit. But take a close look at what the letter actually said.
The principle of prosecutorial discretion is well established. Indeed, INS General and Regional Counsel have taken the position, apparently well-grounded in case law, that INS has prosecutorial discretion in the initiation or termination of removal proceedings…. True hardship cases call for the exercise of such discretion, and over the past year many Members of Congress have urged the INS to develop guidelines for the use of its prosecutorial discretion. Optimally, removal proceedings should be initiated or terminated only upon specific instructions from authorized INS officials, issued in accordance with agency guidelines. The undersigned Members of Congress believe that just as the Justice Department’s United States Attorneys rely on detailed guidelines governing the exercise of their prosecutorial discretion, INS District Directors also require written guidelines, both to legitimate in their eyes the exercise of discretion and to ensure that their decisions to initiate or terminate removal proceedings are not made in an inconsistent manner.
Adjust for the fact that the relevant department has a different name today and you could use the same language to push the Obama administration to initiate or expand a program like DACA—the president’s deferred action program for DREAMers. It’s a different category of people, but the principle is identical. Conservatives will note that Smith and his co-signers were technically describing internal guidance, analogous to the “Morton Memos,” which preceded DACA. But the main distinction between the two is that DACA made the internal guidance public, allowing DREAMers to come forward. Clearly Smith’s goal wasn’t to seek deportation protection for adopted immigrants and then never tell them about it. It was to get them off the hook, and provide certainty to them and others in their position.
The ironies pile up from there. Smith sent the letter precisely because Congress was too gridlocked to fix the problem with new legislation. Moreover, he was arguing that the government could use prosecutorial discretion even in this case, where the law spoke specifically to immigrants who had committed a certain level of felony. Joining him on the letter were Representative Kay Granger, who today leads Speaker John Boehner’s working group on the border crisis, and Representative Nathan Deal, now governor of Georgia, who is demagoguing immigration in his re-election race.
In today’s parlance, these Republicans were asking Janet Reno to channel Caesar, don her laurel wreath, and make haste across the Rubicon.
Obviously the debate today is over using discretion on a much larger scale. And one could argue that the norm being tested isn’t the propriety of using discretion to create policy when Congress won’t act per se, but of using it so broadly. But then you’ve trespassed into substance. If a program for 50,000 is normal, why not 500,000? Or 5,000,000. Where along the continuum do we start to stretch the boundaries, and based on what criteria?
On Tuesday I argued that liberal concerns about conservatives running wild with the precedent are unwarranted, and that conservative pleas for adhering to norms are really just shells for ideological motives. Smith's letter supports both of those views.
Brian Beutler is a senior editor at The New Republic.