Obama’s Goal: Shape Immigration System for Years to Come

"The state? I am the state!" — The Sun King, Louis XIV of France

"A traitor is everyone who does not agree with me." — George III of England

"I've got a pen, and I've got a phone." — Barack Obama

I will leave it to others better at punditry to offer the definitive remarks on President Obama's final state of the union speech. I found it to be an unappetizing blend of feel-good, defensiveness, and preacher-like hectoring on living up to our better natures — as defined by him.

Immigration figured prominently: "fix[ing] the broken immigration system" was mentioned right off the bat as one the items yet to be accomplished during his presidency. It also formed a consistent subtext in remarks about immigrants, inclusiveness, not blaming aliens for depressed wages, etc. But there was nothing in the way of detail for anyone trying to follow the direction these efforts to "fix" the system might take.

This may well be because the president has learned the peril of telegraphing his moves in advance, most particularly when they involve the invidious, imperial, and constitutionally dubious business of using "executive action" to achieve what he cannot bully Congress into doing.

But the clues are there.

When interviewed for a cloying article published in New York Magazine, recently appointed Attorney General Loretta Lynch commented that "My goal is to position the department [of Justice] where it will carry on in all of these issues long after myself and my team have moved on."

One suspects that it is not just Lynch, and not just the Department of Justice (DOJ) where this effort is taking place to embed into the organs of government, on a long-term basis, left-leaning progressive policies. How, exactly, might the president and his cabinet accomplish this?

There are two ways, and the first has become well known: using "executive action" to stretch the power of the presidency into arenas constitutionally preserved to other branches of government to achieve what they wish. Even if we were to assume that the next president promptly begins the process of rescinding these actions, there have been so many, and they have been so far-reaching, that it will take years to undo the damage, if indeed it can be undone. The federal bureaucracy is like a battleship; formidable, but slow to change direction precisely because of its awesome size and complexity.

Which brings us to the second way the president and his cabinet can push their agenda long after vacating their chairs. It is well known that presidents, all presidents, regardless of party, eagerly cram the federal judiciary with appointees who share their views, at the district and appellate court levels and — the crown jewel — even the Supreme Court when vacancies appear, which happens rarely because federal judges and justices are given lifetime appointments. While there are only nine Supreme Court justices, there are hundreds of district and appellate court judges, so vacancies appear regularly.

Less well known is how to manipulate the federal bureaucracy, which is so large and so all-pervasive in virtually every sector of society that it has been referred to by some as "the secret state." Others have observed that because of the extraordinary growth of government, our democratic republic has transformed itself into an "administrative state," in which power has accreted into the hands of powerful agencies responsible primarily to the executive branch. The Obama White House has excelled in understanding and manipulating this dynamic.

By taking control over key positions (and by this I do not mean the political appointees themselves, who come and go with each administration), an administration can influence events years into the future. Consider, for instance, DOJ, since we began this discussion with the Lynch interview. In the immigration context, a key component of DOJ is the Executive Office for Immigration Review (EOIR). EOIR is composed of both the immigration courts and the appellate tribunal, the Board of Immigration Appeals (BIA). Every immigration judge or BIA member is appointed by the attorney general, and they are for all intents and purposes permanently tenured. It would take egregious acts of malfeasance to remove them.

These are the officials who literally define the course of immigration hearings throughout the entire nation. Place into those positions enough individuals who view immigration through the liberal filter of the Obama administration and you have skewed the direction of immigration enforcement for decades to come. Add significant new immigration judge or BIA positions into the mix, approved by Congress due to court workloads and backlogs, and you have even further shaped the future into a funnel of your choosing.

The same can be done at the Department of Homeland Security, again sidestepping the political appointees who come and go with regularity, and pushing down to the next one or two levels of the bureaucracy. By exercising philosophical and political litmus tests for those you choose to appoint as your head of asylum and refugee affairs (who will in turn select the officers who perform the function of approving and denying applicants for asylum), you have effected a near-permanent influence on how those adjudications will be performed. As recent events have shown us, there is a direct and sometimes adverse effect between the quality of those adjudications, and national security and public safety.

As we lurch through this last year of Barack Obama's presidency, some of the changes he effects may be invisible to the naked eye, but make no doubt that Lynch was being neither rhetorical nor hyperbolic in her remarks in asserting that they will be felt for generations to come.

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