We have paid a lot of attention to the complaint of some of the bureaucrats within ICE against their political leadership. We have reported on the ICE Agents Union’s vote of “no confidence” in Director John Morton and the bizarre lawsuit filed by James T. Hayes against Janet Napolitano. But yesterday, ten agents of Immigration & Customs Enforcement filed a lawsuit against the administration charging that the President’s deferred action policy is illegal and enforcing it requires them to violate their oath of office. This is, by far, the most ambitious effort by these unelected bureaucrats to undermine the political will of the people.
The agents assert that the new policy prohibits agents from doing their job, which they see as arresting and processing for removal proceedings every removable individual that they encounter. They claim that they face disciplinary action if they arrest individuals who have been identified as “low priorities” by ICE leadership. Finally, the agents claim that the public safety is at risk when they are not permitted to arrest certain removable individuals. The agents filed in the Northern District of Texas, presumably because they thought it would be a friendly forum for their claims.
Their lawsuit is not likely to succeed. The Supreme Court and the federal courts have emphasized over and over again that the decision to initiate and terminate removal proceedings lies squarely within the discretionary authority of the agency. While one might think that these court decisions come from people challenging the agency’s initiation of removal proceedings, they have also been issued where people have sued the agency because they wanted the agency to initiate removal proceedings. Over and over again, courts have stated that ICE has unreviewable discretion to begin or not begin removal proceedings. The agents seems to think that these decisions give them as individual agents the authority to begin or not begin removal proceedings. Wrong. It gives the agency the authority to make these decisions and these agents have supervisors and managers who are charged with enforcing the law as interpreted and defined by the agency. The political leadership gets to make that call because, they, unlike the ICE agents, are the designees of the elected President. For ICE agents to refuse to follow the legitimate directives of the political leadership is insubordination that would be intolerable in any other situation.
In addition, President Obama, Secretary Napolitano, and Director Morton did not invent deferred action. Deferred action has been in place for over four decades. In addition, although the bureaucrats claim that deferred action has always been an individualized determination and not used for large classes of individuals, that is not true. The agency has granted deferred action to victims of domestic violence and certain widows of American citizens. The size of the class of people eligible for deferred action does not render the deferred action designation inappropriate.
The lawsuit is clearly political. It is a rearguard action by agents, and their political enablers, like anti-immigrant lawyer Kris Kobach and the restrictionist group Numbers USA. These agents and their political handlers disagree with the policy and are airing their political differences as a legal issue. The good news is that they are fighting a losing battle. Their lawsuit will not survive and, politically, support for the deferred action program is growing. An election is coming up and the voters will have an opportunity to decide whether the President should be re-elected. The deferred action program will be included in the voter’s calculus. Then, the right people, the American voters, will have a chance to pass on the program. In the meantime, these bureaucrats have two choices: do their job or quit it.