The Bureaucrats’ Revolt, Part III

24 Aug

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.


7 Responses to “The Bureaucrats’ Revolt, Part III”


  1. The Role of Immigration in the President’s Re-Election « Lifted Lamp - November 10, 2012

    […] work permits and had hope for the first time in their lives. Republicans denounced the plan, some ICE bureaucrats filed suit against the plan, but it was clear that the Latino community had returned to President Obama. Mitt Romney vowed to […]

  2. New Memo on Detainers- Will it be Followed? « Lifted Lamp - December 28, 2012

    […] why are you deporting my mama” articles and signs among immigrant youth show that ICE agents continue to resist the administration’s stated approach to enforcement.  So, here comes another memo.  If followed, the memo should have a significant positive impact […]

  3. DACA, Provisional Waviers, and de Osorio? « Lifted Lamp - January 4, 2013

    […] are the death shrieks of a disappearing order, where once can say of Joe Arpaio, Russel Pearce, Kris Kobach, and Steve King, as Bob Dylan once did, “something is happening here, but you don’t […]

  4. The Immigration Industrial Complex « Lifted Lamp - January 9, 2013

    […] large amount of money at stake for immigration enforcement makes it clear that the efforts of some ICE bureaucrats to derail common-sense immigration reform is a result not of a principled belief in our national security and public safety, but rather to […]

  5. The Whine of the ICE Bureaucrats « Lifted Lamp - February 3, 2013

    […] and nativist agenda.  Regular readers of this blog (my wife and my mother), will know that we have sought to document the efforts of bureaucrats within ICE to stymie intelligent immigration enforcement through insubordination, lawsuits, leaks, and more […]

  6. Immigration Reform Follies! « Lifted Lamp - February 19, 2013

    […] if you pay no attention to everything else Chris Crane has ever said.  Based upon his testimony, Mr. Crane believes that ICE is not being allowed to do its job of keeping the community safe because the ICE political leadership has instructed ICE officers to focus their removal efforts on […]

  7. Does the President Have the Power to Stop All/Most Removals? | Lifted Lamp - November 25, 2013

    […] in federal court over agency actions.  In fact, when the President established DACA, a number of ICE bureaucrats brought suit arguing that the INA provides a mandatory duty upon ICE to initiate removal proceedings against all […]

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