No one reading my ID comments has ever called me an admirer of Kansas Secretary of State Kris Kobach, and no one could possibly do so. The best term I can think of to describe him is as the evil genius, or Svengali, of the anti-immigrant hate movement. For this reason I was glad to see that two attorneys who can justly be called intellectual giants of the immigration bar, Cyrus Mehta and Gary Endelman, both of whom I greatly admire and respect, lost no time in responding to the allegations in Crane v. Napolitano, the lawsuit which has just been filed in federal court by a group of disgruntled ICE agents, represented by Kobach.
After reading their article, They Still Have Their DREAM: Law Suit Against DREAMERs Will Go Nowhere in the August 27 ID, I was of course impressed with the arguments they raised against Kobach's contention in the complaint i nthat lawsuit that the agents in question are allegedly being ordered to violate federal law in both ICE Director John Morton's memo of June 17, 2011 relating to Prosecutorial Discretion and the August 15, 2012 memo of DHS Secretary Janet Napolitano implementing President Obama's Deferred Action program for DREAMERS.
However, I am also tempted to mention one or two points in my self-appointed role as a devil's advocate. Just as US v. Arizona, recently decided by the Supreme Court, raised important questions about the respective roles of the state and federal governments in immigration law enforcement, there is reason to believe that Crane v. Napolitano, obnoxious as the actors in filing that lawsuit may be to those of us who believe in racial equality and immigrant rights (concept which cannot be separated), nevertheless raises a serious question about the proper relationship between the President and Congress with regard to immigration law.
As the complaint in that lawsuit and the Mehta-Endelman both point out, there are two main issues raised in Crane v. Napolitano. The first is whether DHS has the legal power to grant either Prosecutorial Discretion or Deferred Action (which, as Secretary Napolitano is careful to point out in her August 15 memo, depends on Presecutorial Discretion for its justification) to someone who has not yet been placed in removal proceedings. The second issue is whether there is any stautory authority for granting employment authorization to DREAMERS, even though they have no legal status of any kind.
With regard to the second issue, there may be a good argument that it is not necessary to determine this question on the merits. The plaintiffs are all ICE agents. But employment authorization is issued by USCIS, a different branch of the DHS. As I read the complaint, there is no allegation that the plaintiff ICE agents themselves are being ordered by their superiors to grant employment authorization to anyone. Nor does either the Morton memo or the Napolitano memo claim that ICE agents have the power to do so. Therefore there is a real question about whether these plaintiffs have standing to bring a lawsuit on this issue.
However, on the question whether the Napolitano memo directing ICE agents not to place DREAMERS in removal proceedings, and the Morton memo allowing ICE agents to use their discretion not to place any "low priority" person in removal proceedings are in direct violation of a federal statute, namely 8 U.S.C. Section 1225 as allleged in paragraphs 55 through 59 of the complaint, I believe that the lawsuit needs to be taken more seriously.
In my next comment, I will discuss why I do not believe that the arguments raised in the Endelman-Mehta article are a sufficient answer to this question.
Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years