Hat Tip, Old Old Vet

Contrary to Democrat/ Main Stream Media propaganda, the Obama Regime Administrative Amnesty is on a knife edge. President Obama’s unilateral action is vulnerable—legally, bureaucratically, and in the Congress. America awaits only a few brave men to bring down this rotten abomination.

Court rulings have already exposed the shaky legal foundations of any kind of Administrative Amnesty effort. Even the Regime’s more limited “Deferred Action” program that allowed Central American “refugees” into the country was ruled inherently unlawful by District Judge Reed O’Connor in a lawsuit filed by the heroic Kris Kobach. (Read the filing in PDF.)The judge threw out the suit for jurisdictional reasons but

“Plaintiffs were likely to succeed on the merits of their claim that the Department of Homeland Security has implemented a program contrary to congressional mandate,” he said in his ruling… [Judge Dismisses ICE Agents’ Lawsuit Challenging Obama’s Deferred Action, by Elizabeth Llorente, Fox News, August 01, 2013. My emphasis]

As Judge O’Connor here recognized, [ PDF ] both the Obama Regime’s practice of non-enforcement and its unilateral grants of Amnesty violate the Constitution. It is the Legislature that is supposed to create laws. The Executive merely enforces them.

Obama’s more recent immigration action also met judicial condemnation for this same reason. In his ruling in December 2014, Pennsylvania District Judge Arthur Schwab ruled that “Executive Action Goes Beyond Prosecutorial Discretion—It is Legislation” because

it provides for a systematic and rigid process by which a broad group of individuals will be treated differently than others based upon arbitrary classifications, rather than case-by-case examination; and

it allows undocumented immigrants, who fall within these broad categories, to obtain substantive rights.

[Memorandum Opinion And Order Of Court Re: Applicability Of President Obama’s November 20, 2014 Executive Action On Immigration To This Defendant, United States Of America, Plaintiff, v. Elionardo Juarez-Escobar, Defendant., U.S. District Court For The Western District of Pennsylvania, December 16, 2014]

Substantive rights, employment authorization for example, are granted by an Act of Congress—not arbitrarily granted by the President without authorization by law.

But though there are court rulings that say that Obama’s Amnesty is an unconstitutional usurpation, there hasn’t yet been anyone with standing who can show specific harm for refusing to follow unlawful and unconstitutional orders, thus forcing them to be reversed. In District Judge O’Connor’s ruling for example, the ICE agents who filed the suit didn’t actually suffer disciplinary harm, they were merely confronting the potential of being disciplined for trying to enforce immigration law.

What should be done? A simple rider on the upcoming funding bill for the Department of Homeland Security can undo Obamnesty.

Such a rider would prohibit any disciplinary action against DHS employees who refuse to implement the illegal and unconstitutional Administrative Amnesty.

What would refusing to implement Amnesty mean? Simply that ICE Deportation Officers and Immigration Enforcement Agents could ignore orders to stop making arrests, stop issuing Notices To Appear (NTA-Form I-862) to illegal aliens, and to release convicted criminal aliens from custody.[ Lawsuit: Obama Officials Pressured Prosecutors To Release Convicted Criminal Illegal Aliens, by Jonathan Strong, Breitbart, November 10, 2014]

This would be a problem for the Obama Regime. It might put some ICE officials on unofficial light duty or alternate duty as a response. But any retaliation more serious that than would create a problem with the ICE union, the National ICE Council.

If large numbers of ICE employees stop following the Administrative Amnesty, the Regime will be in big trouble. Its power over union employees is limited. They can only be disciplined for well-established violations. Following the law is not one of them.

The second problem for the Regime: local ICE management, the Field Office Directors (FOD) and to Supervisory Deportation Officers (SDO) don’t want any conflict with their employees, much less widespread conflict, nor can they discipline large numbers of employees at the same time. There is just not enough attorneys and employee relations specialists in ICE to deal with even routine disciplinary issues, much less wide spread defiance of what local management knows to be illegal orders.

And ICE is an agency that promotes from within, so all the managers in ICE started out doing the work that the Regime wants ICE to stop doing.

There might be a lot of screaming from Senior Executive Service (SES) managers in ICE Headquarters in Washington, DC. But there would be little they could do. The HQ managers are in DC, and removed from the day-to-day activity of immigration law enforcement. And (see above) they can’t fire people without running into union issues.

Furthermore, as the Regime isn’t technically creating new “legal rights” with its Administrative Amnesty, aliens can’t sue to have their arrests overturned, their Notices to Appear quashed, or be released from prison. There are thus no easy options for the Regime.

The same goes for the other agency implementing the Administrative Amnesty, U.S. Citizenship and Immigration Services (USCIS). There is not much HQ managers can do if the employees in the field refuse to follow illegal orders. Only so many recalcitrant employees can be shuffled aside.

The objective here: to create a defendant who actually has standing if he or she is actually disciplined for doing his or her job. The recent court cases indicate that the Regime’s Amnesty is indeed vulnerable if there is a law enforcement official directly affected by the Obama Administration’s actions.

For example, the Obama Regime and its pet reporters celebrated when a District Court judge threw out the lawsuit by Sheriff Joe Arpaio against the President’s unilateral Amnesty.

White House spokesman Eric Schultz said the court correctly dismissed the lawsuit. "Judge Howell's decision today confirms what the Department of Justice and scholars throughout the country have been saying all along: the president's executive actions on immigration are lawful," Schultz said. "The Supreme Court and Congress have made clear that federal officials can set priorities in enforcing our immigration laws, and the actions announced by the president are consistent with those taken by administrations of both parties for the last half century." [Federal judge throws out Sheriff Joe Arpaio lawsuit against Obama immigration plan, AP, Fox News, December 24, 2014]

Even an ongoing threat to Arpaio by undocumented immigrants would not provide him with standing to challenge the deferred action programs at issue, [Judge] Howell wrote. "The plaintiff must not only show that he is injured, but that the plaintiff's injury is fairly traceable to the challenged deferred action programs and that the injury is capable of redress by this court in this action."

But the Obama Regime is whistling past the graveyard: Arpaio lost because the judge ruled on standing—not on the substantive issues. The AP report continues:Bottom line: patriots need to open a second front in the immigration wars by finding a defendant with standing. Somewhere in America’s law enforcement community, there is an authentic public servant who is being sabotaged by his own nominal superiors.

GOP elected officials owe it to those brave men and women who dedicate their lives and careers to protecting the American people to show them that somebody cares about them—even though the President does not.

By attaching a rider to a DHS funding bill, the Republican Congress can force the direct confrontation that the Obama Regime knows it must avoid at all costs.

The blogger Federale (Email him) is a 4th generation Californian and a veteran of federal law enforcement, including service in the legacy Immigration and Naturalization Service, the Department of Homeland Security, and other federal law enforcement agencies.

Federale's opinions do not represent those of the Department of Homeland Security or the federal government, and are an exercise of rights protected by the 1st Amendment to the Constitution of the United States.