Our Constitution was supposed to make America a nation of laws, not of men.
That changed when President Barack ObamaBarack Hussein ObamaDemocrats make final plea for voting rights ahead of filibuster showdown Biden nominates Jane Hartley as ambassador to UK To boost economy and midterm outlook, Democrats must pass clean energy bill MORE put aside the classes of deportable aliens listed in section 237(a) of the Immigration and Nationality Act (INA) and created his own list of deportable alien classes.
The Democrats are still restricting deportations, but they are doing it now by preventing Trump from receiving the funds he needs for effective enforcement measures. Moreover, they make enforcement costly for him politically by demonizing him whenever he initiates a significant enforcement measure.
They didn't have to resort to such tactics. They could have just replaced the INA with their own immigration bill during the early years of the Obama administration.
From January 2009 to January 2011, they had a majority in the House, and until Scott Brown’s special election in 2010, they had enough votes in the Senate to stop a filibuster. They were able to pass the Patient Protection and Affordable Care Act (ObamaCare) without a single Republican vote in the House or the Senate.
In fact, one of Obama's campaign promises was that there would be an immigration bill during his first year in office.
So, what happened?
The Democrats demonize Trump by attacking his character and his intentions instead of addressing the merits of his enforcement measures, which students of logic call the "Ad Hominem Fallacy."
This tactic is illustrated by the way Democrats reacted to the announcement that ICE was going to locate and remove 2,040 alien family members who were subject to final deportation orders.
ICE's Acting Director Mark Morgan, explained that the administration's objective was to restore the rule of law and the integrity of the system. One of the greatest pull factors drawing undocumented families here is that they can expect to be safe from deportation once they have crossed the border and are in the United States. We have to change that.
House Speaker Nancy PelosiNancy PelosiJoining Pelosi, Hoyer says lawmakers should be free to trade stocks Budowsky: To Dems: Run against the do-nothing GOP, Senate Momentum builds to prohibit lawmakers from trading stocks MORE (D-Calif.) responded that Trump's plan was so appalling that it was outside the circle of civilized human behavior. She asked him to halt his "heartless immigration raids." Sen. Kamala HarrisKamala HarrisMadame Tussauds unveils new Biden and Harris figures Democrats ponder Plan B strategy to circumvent voting rights filibuster Watch: Lawmakers, activists, family members call for voting rights legislation on MLK day MORE (D-Calif.) described the planned raids as a crime against humanity. And so on.
Frankly, I don't know who the Democrats think should be deported if they consider it outrageous to deport aliens who are subject to a final order of deportation from the courts.
They seem to agree that dangerous criminals should be deported, but their sanctuary cities throughout the country refuse to notify ICE when a criminal alien is about to be released to give ICE a chance to pick him up.
They responded the same way to the new rule Trump issued on Aug. 23 to make it possible to detain children with their families for extended periods. In January 1997, the parties to the Flores v. Meese lawsuit approved an agreement that is referred to as the Flores Settlement Agreement (FSA). It has been interpreted as limiting the detention of a child to no more than 20 days. Trump had been separating children from their parents so that he could release the children within the 20 days (Flores doesn’t apply to the parents), but this produced such a firestorm of criticism that he now usually releases the parents too when their children are released. This has become another pull factor.
In the first ten months of fiscal 2019, the number of family units apprehended at the Southwest border each month increased from 23,115 to 42,566.
The new rule is expected to eliminate “catch and release” without violating the principles of Flores. The migrants will be held together in "family residential centers." These "campus-like" facilities will provide healthcare, classrooms for minor children, and access to legal assistance.
But Trump won't be able to provide enough of these facilities if the Democrats refuse to provide the necessary funding.
Democratic lawmakers blasted the rule.
Pelosi said, “It's appalling, inhumane family incarceration plan would rip away basic protections for children’s human rights, reversing decades-long and court-imposed rules and violating every standard of morality and civilized behavior."
Sen. Minority Leader Chuck SchumerChuck SchumerDemocrats make final plea for voting rights ahead of filibuster showdown DACA highlights pitfalls of legalization schemes The Hill's Morning Report - Presented by Facebook - Schumer tees up doomed election reform vote MORE (D-N.Y.) said, "the new regulation is about letting President TrumpDonald TrumpKinzinger welcomes baby boy Tennessee lawmaker presents self-defense bill in 'honor' of Kyle Rittenhouse Five things to know about the New York AG's pursuit of Trump MORE and Stephen Miller keep children in awful conditions for longer periods of time.”
Detention is required by law.
Aliens apprehended near the border after making an illegal entry are subject to expedited removal proceedings pursuant to section 235(b)(1) of the INA, and subsection 235(b)(1)(B)(lll)(IV) requires mandatory detention unless they can be released on parole “for urgent humanitarian reasons or significant public benefit.”
They had also been released if they established a credible fear of persecution, which entitled them to an asylum hearing before an immigration judge, but on the basis of the Supreme Court's decision in Jennings v. Rodriguez, however, Attorney General William BarrBill BarrWilliam Barr's memoir set for release in early March The enemy within: Now every day is Jan. 6 Dems worry they'll be boxed out without changes to filibuster, voting rules MORE held in Matter of M-S-, on April 16, 2019, that mandatory detention of an alien who has established a credible fear must continue until his asylum application has been adjudicated, unless he is released on parole.
I worry about where our country is headed if the Democrats continue to go their own way on immigration issues without regard to our immigration laws.
Our “nation of laws” is diminishing in the rear-view mirror.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1