Because We Live in a Country with Borders

By Ian Smith

Friday, January 27, 2017

In 1973, John Lennon and Yoko Ono held a press conference to publicize the former Beatle’s ongoing deportation battle with the Immigration and Naturalization Service (INS) under the Nixon administration. The two used the occasion to announce the founding of “deferred action,” the controversial form of administrative relief from deportation that purportedly undergirds the Obama-legacy DACA (Deferred Action for Childhood Arrivals) program. (Interestingly, William F. Buckley Jr. petitioned in Lennon’s favor at Ono’s request, according to WFB’s son, Christopher Buckley, an intervention that may have helped persuade the Nixon administration to allow Lennon to stay.) With DACA currently the subject of a coordinated nationwide media campaign by open-borders activists, it is more important than ever to understand the lawless use of deferred-action programs by the previous administration. Allowing DACA and its abuse of deferred action to continue could make Lennon’s “cosmic” concept come true, turning the American nation from one ruled by law to one ruled by nutty Nutopians.

Obama created the DACA amnesty program in reaction to a supposed “gridlock” in Congress over the DREAM (Development, Relief, and Education for Alien Minors) Act, the mass-amnesty bill for illegal aliens under 30 that has been rejected no less than 24 times since 2001, when it was introduced by Senator Orrin Hatch. DACA closely copied the central elements and criteria of the insipidly titled bill, from its sentimental focus on “children” to its requirement that applicants have a high-school-equivalency diploma.

Trying to find a legal justification where none existed in the U.S. Code, Obama premised DACA’s “temporary” relief from deportation on the executive’s ability to prosecute only a few offenders, given the government’s “limited resources.” This authority, so-called prosecutorial discretion, refers to the priorities criminal prosecutors sometimes must adopt when they cannot try every criminal act brought to their attention by police. Federal prosecutors decline to prosecute only in limited circumstances and — crucially — only on a case-by-case basis. By contrast, Obama’s DACA program doles out amnesty in blanket fashion to applicants broadly fitting the rejected DREAM Act’s criteria.

John Lennon was disqualified for permanent-resident status (rendering him removable) for his 1968 British conviction for possession of cannabis resin. As John related in his affidavit, his arguments for receiving deferred action were particular and convincing. His wife, Yoko, had been a 25-year legal permanent resident in the U.S., and the two had moved stateside from the U.K. to search for Yoko’s daughter after she was abducted by Yoko’s first husband. A forced return or a separation from John would have disrupted that effort and risked the health of Yoko, who was pregnant at the time of the proceedings. In addition, Lennon had significant business interests and contacts in the U.S. that, if disrupted, would have harmed his music career.

Such a close factual determination was necessarily absent from DACA. The nearly 1 million applicants fitting its broad criteria could of course petition on their own and did not have to be in removal proceedings, where such case-by-case determinations are properly made.

Also important is that prosecutorial priorities are not usually announced by prosecutors beforehand. As liberal law professor (and immigration attorney) Peter Margulies writes, the decision to exercise discretion in dealing with wrongdoers necessarily must be done “in the dark,” not out in the open (as in a nationwide memo in the DACA amnesty). To announce such an intent creates “moral hazard” — the increase in law-breaking that arises when the perpetrator knows the wrongdoing will be consequence-free.

Lennon’s case was precedential in large part owing to the government’s normal lack of transparency inherent in its discretion-based decisions. For the first time, the INS was forced to publicly admit that a deferred-action policy existed, one that it had been refusing to apply in his case for political reasons supposedly going all the way up to Nixon.

Congress has since dramatically curbed the discretion the INS was purporting to hold at the time of the Lennon removal litigation. A number of provisions in the Immigration and Nationality Act now describe in detail when removal relief can be granted. For instance, refugees, asylum seekers, and domestic-abuse victims can seek such relief. And in cases of “extreme hardship,” even illegal aliens can be provided relief. The secretary of the Department of Homeland Security also has the authority to “parole” illegal aliens into the country for “urgent humanitarian reasons,” but only if an individualized case-by-case, fact-based inquiry is conducted. All of this points to Obama’s purported authority to grant amnesty to whomever he wants as being unlawful.

Undergirding the argument of pro-DACA, no-borders activists is always mere poetics, not closely considered policy. But policy based on poetics necessarily fails to examine the effects of its consequences on everyone who is affected, such as American citizens in immigrant-heavy job markets. These post-national globalists simply cannot appreciate that independent nation-states as organizational units have actually been widely successful in preserving communities and elevating the lives of working people. Without borders, these benefits will be trampled. Whether we stick to civic nationalism or wait passively for the catastrophic consequences of our baser Nutopian urges is now up to we the people.