The 2010 DHS Memo That Obama Followed To The Letter On Executive Amnesty

Ian Smith Immigration Reform Law Institute
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In an interview this past week, the new chairman of the Senate Homeland Security Committee, Ron Johnson, questioned why Obama chose to do nothing about immigration during his first two years in office. The answer apparently is that he didn’t get the memo.

In early 2010, a memo was leaked to the media from DHS that can only be described as a how-to manual on pushing through executive amnesty by stealth. The 10-page document is filled with highly detailed political calculations, suggested legal pretexts, “messaging” pointers, and startlingly accurate predictions on how Congress would react to “deferred action.” Although it was leaked in 2010, only now can it be fully appreciated. All of Obama’s underhanded tactics and spurious arguments that we’ve seen from DACA to DAPA are laid out in the memo like a roadmap.

Opening the memo is the striking admission that “DHS has long envisioned legislation establishing a broad-based legalization program.” But outside plain old legislative options, the authors write, there are “administrative options” (the memo’s title), such as the granting of millions of illegal aliens “deferred action status.”

The memo contemplates an amnesty program that “reaches the entire potential legalization population” of 11.5 million. In the alternative, the memo reads (remember this was written way back in 2010), “we could propose a more narrowly-tailored program for individuals eligible for relief under DREAM Act.” The DREAM Act was introduced and rejected 24 times in Congress and, later in 2012, Obama pushed through an amnesty decree for up to 1.75 million illegal aliens on terms that so closely followed the DREAM Act he called its recipients, “dreamers.”

But the 2010 memo did warn that such an administrative strategy does have its “drawbacks.” Only “[i]f public reaction is positive” could it “galvanize the Department’s efforts to execute a broader … program in the future,” i.e. another DACA.

The public reaction to DACA was not positive, but our elected Republican leaders did absolutely nothing to fight the program. That apparently was enough to “galvanize” the administration. Two and a half years after announcing the first amnesty, Obama and DHS stepped it up with the much broader 5 million-plus DAPA program.

With DAPA, Obama certainly delivered on his promise to go ‘bigger and bolder.’ As the authors had advised, “proposing a smaller registration program may generate the same level of opposition as the full registration program.” So, the memo says, if you’re going to go for an illegal amnesty, go big and bold.

Tacitly, the authors actually admit programs like DACA and DAPA are illegal. Targeting mass groups of illegal aliens, they write, would “represent use of deferred action on a scale far beyond its limited class-based uses in the past [e.g. for widows].” These highly exceptional, narrowly-defined applications of deferred action are different, they note. And “Congress,” they warn, “may react by amending the statute to bar or greatly trim back on deferred action authority, blocking its use even for its highly important current uses in limited cases [emphasis mine].”

Knowing that nothing like DACA or DAPA had ever been considered before, they also predict a raft of negative reactions including “legal challenges,” “internal complaints” from DHS career staff, the perception that “unilateral action” is an “end run around Congress,” and they worry that, “[t]he Secretary would face criticism that she is abdicating her charge to enforce the immigration laws.” Note the worried tone here. If DHS’s authority for mass “prosecutorial discretion” was as cut-and-dry as the Office of Legal Counsel says it was, the memo would’ve been much more confident and far less skeptical about its application.

The 2010 memo even predicts what happened last week: the GOP’s House vote to defund executive amnesty. They warn that “Congress may… seek to undermine [executive amnesty] through legislation or by using its appropriations authority to prohibit the expenditure of funds on such a program.” A side-note to Congressman Hal Rogers: defunding a DHS program is possible.

Although they acknowledge that application fees may offset some costs for implementing executive amnesty, they state that “the only realistic prospect of a source of funding may be a new appropriation.” But this, they worry, could lead to Congress potentially blocking upfront funding. Interestingly, DHS’s Citizenship and Immigration Services (USCIS) recently dropped millions on a 1,000 new hires and office space, which Congress doesn’t appear to have approved. Although not mentioned explicitly in the memo, USCIS might have illicitly taken money from other internal sources. As the Center for Immigration Studies’ Jessica Vaughan told Fox News last week, the agency may have “squirreled away money from the fee revenues from other programs to get this off the ground… without authorization from Congress.” Considering the authors well-founded worries, it’d be nice to know how DAPA (and DACA) got their upfront funding.

As this memo shows, while Obama was telling voters and the media that he could not “ignore the laws on the books” he was plotting amnesty and waiting for DHS counsel to set up him up with roadmap all along.

As the memo concludes, “[i]f criticism about the legitimacy of the program gains traction, many supporters of legalization may find it hard to vote against a [defunding] bill.” With such a bill now waiting in the Senate, let’s hope this happens.