The immigration record of Attorney General Holder's Justice Department is no less dismal. DOJ provided the legal guidance upon which President Obama relied when he reversed course to exempt unlawful aliens from deportation in an act of statutory nullification. His department sued four states for taking carefully tailored, race-neutral steps to fix an immigration system Mr. Holder has deemed "broken."
On April 24, the leader of America's premier federal law enforcement agency and only sitting cabinet member ever to be held in contempt of Congress declared: "creating a pathway to earned citizenship for the 11 million unauthorized immigrants in this country is absolutely essential. This is a matter of civil and human rights.”
Words matter. Particularly legal words spoken by the Attorney General of the United States. Civil rights protect individuals from unequal treatment; those whose civil rights are violated are entitled to legal redress.
Why would Congress establish a "path to earned citizenship" when the attorney general has concluded that unlawful immigrants have a pre-existing civil right to the rewards citizenship confers? How can Congress be assured enhanced enforcement measures will be implemented when the Administration's top lawyer believes unlawful immigrants have rights to citizenship based on their willingness to violate the law?
From what legal authority does this critical legal approach to the immigration laws arise? If they emanate from the Equal Protection Clause, will DOJ accord higher scrutiny to alienage classifications? If these rights spring from the Civil Rights Act, will enforcement measures that have a disparate impact on illegal immigrants be actionable in federal court? When does an unlawful immigrant's presence give rise to a civil right to American citizenship? After six months? One year? Do legal immigrants have even greater rights to citizenship?
Are inadmissible residents convicted of domestic violence, gang membership, or those with ties to foreign terrorist organizations entitled to citizenship? Will DOJ litigate on behalf of illegal immigrants to vindicate their rights in federal court? Do these rights extend to illegal immigrants after enactment of pending immigration legislation? Or will they vanish the moment President Obama signs immigration reform legislation into law? If so, can Mr. Holder cite any temporally or situationally-derived civil right in American legal history?
As head of the office that drafted or reviewed the April 24 speech announcing these new rights, what role did Assistant Attorney General Perez have in their creation? If confirmed as Labor Secretary, will Mr. Perez assert that persons, regardless of immigration status, have "civil and human rights" to work in the United States? After all, what civil right is more fundamental than the right to provide for oneself and one's family? Are there any rights of citizenship to which illegal immigrants are not entitled? If unlawful immigrants have a civil right to citizenship, can they be denied other privileges, including the right to vote?
Mr. Holder has a statutory obligation to provide independent legal guidance to the entire executive branch. In a recent interview, he offered his view of this responsibility when he stated: "I’m still the President’s wingman, so I’m there with my boy."
Before either body of Congress votes on immigration reform, each must assess this Administration's failed immigration record against pledges of future enforcement. It must also examine the consequences of according illegal immigrants a civil right to citizenship that nullifies promises of enhanced enforcement and erodes the significance of American citizenship itself.
Tracci was chief legislative counsel for the House Judiciary Committee, 2000-2006; deputy assistant attorney general, U.S. Department of Justice, 2007-2008; and special assistant United States Attorney, U.S. Department of Justice, 2009-2012.