RUTHFULLY YOURS

Americans overwhelmingly approve of President Trump’s efforts to clamp down on so-called sanctuary cities, according to the results of a Harvard–Harris poll. The Hillreported the poll’s finding that “80 percent of voters say local authorities should have to comply with the law by reporting to federal agents the illegal immigrants they come into contact with.” One of the key measures that President Trump has directed his Homeland Security Secretary John Kelly to explore is cutting off some federal funds to cities which continue to defy federal immigration laws. “The American people are no longer going to have to be forced to subsidize this disregard for our laws,” White House press secretary Sean Spicer said.

There are at least 400 sanctuary cities and counties in the United States, which could lose some federal funding as President Trump’s executive order to withhold some federal funding from sanctuary localities is implemented. The nation’s 10 largest cities alone could lose as much as $2.27 billion in annual federal funds if they choose to remain sanctuary cities, according to a Reuters analysis of federal grants.

New York City Mayor Bill de Blasio, who is running for re-election this year, is among the bullheaded city leaders around the country who are willing to sacrifice the safety and welfare of their own citizens to protect illegal aliens – even some with criminal records. De Blasio threatened to take the Trump administration to court if the Trump administration follows through with funding cuts. And the mayor declared his intention to set aside $250 million a year in a reserve fund for four years because of the “huge amount of uncertainty” created by President Trump’s follow-through on one of his key campaign promises. This is money that should be used to pay for vital municipal services such as hiring more police, which would certainly come in handy if illegal aliens with criminal records continue to be allowed to roam the streets of the city.

Going back to the Harvard-Harris poll, its co-director Mark Penn explained, “The public wants honest immigrants treated fairly and those who commit crimes deported and that’s very clear from the data.” De Blasio and his cohorts, however, could not care less.

Illegal immigrants make up approximately 3.5 percent of the U.S.’s total population. A significant number of illegal aliens living in the United States have committed crimes while residing here unlawfully in the first place. Even the immigration friendly Migration Policy Institute estimated in a 2015 report that “about 690,000 (6.3 percent) of resident unauthorized immigrants have previously been convicted of a felony or a serious misdemeanor.” The number is probably considerably higher than that, but even 690,000 criminals remaining here illegally is bad enough. According to data compiled from the U.S. Sentencing Commission for fiscal year 2015, illegal immigrants were responsible for 30.2 percent of convictions for kidnapping/hostage taking, 17.8 percent of convictions for drug trafficking, 11.6 percent of convictions for fraud, 10.4 percent of convictions for money laundering, 6.1 percent of convictions for assault, and 5.5 percent of convictions for murder.

Activists portray illegal immigration solely as a human story of the desperately poor from south of the border fleeing misery to start new, productive lives in the U.S. — despite exploitation and America’s nativist immigration laws.

But the truth is always more complex — and can reveal self-interested as well as idealistic parties.

Employers have long sought to undercut the wages of the American underclass by preference for cheaper imported labor. The upper-middle classes have developed aristocratic ideas of hiring inexpensive “help” to relieve them of domestic chores.

The Mexican government keeps taxes low on its elite in part by exporting, rather than helping, its own poor. It causes little worry that some $25 billion in remittances sent from Mexican citizens working in America puts hardship on those expatriates, who are often subsidized by generous U.S. social services.

Mexico City rarely welcomes a heartfelt discussion about why its citizens flee Mexican exploitation and apparently have no wish to return home. Nor does Mexico City publicize its own stern approaches to immigration enforcement along its southern border — or its ethnocentric approach to all immigration (not wanting to impair “the equilibrium of national demographics”) that is institutionalized in Mexico’s constitution.

The Democratic party is also invested in illegal immigration, worried that its current agendas cannot win in the Electoral College without new constituents who appreciate liberal support for open borders and generous social services.

In contrast, classically liberal, meritocratic, and ethnically diverse immigration might result in a disparate, politically unpredictable set of immigrants.

La Raza groups take it for granted that influxes of undocumented immigrants fuel the numbers of unassimilated supporters. Measured and lawful immigration, along with rapid assimilation, melt away ethnic-based constituencies.

Immigration activists often fault the U.S. as historically racist and colonialist while insisting that millions of foreigners have an innate right to enter illegally and reside in such a supposedly dreadful place.

Undocumented immigrants themselves are not unaware that their own illegal entry, in self-interested fashion, crowds out legal immigrants who often wait years to enter the U.S.

On Tuesday, John Kelly, President Trump’s secretary of Homeland Security, published a six-page, single-spaced memorandum detailing new guidance on immigration enforcement. Thereupon, I spent about 1,500 words summarizing the guidance in a column at National Review. Brevity being the soul of wit, both the memo and my description of it could have been reduced to a single, easy-to-remember sentence:

Henceforth, the United States shall be governed by the laws of the United States.

That it was necessary for Secretary Kelly to say more than this — and, sadly, that such alarm has greeted a memo that merely announces the return of the rule of law in immigration enforcement — owes to the Obama administration abuses of three legal doctrines: prosecutorial discretion, preemption, and separation of powers (specifically, the executive usurpation of legislative power).

To the extent President Obama declined to enforce immigration law (notwithstanding his constitutional obligation to execute the laws faithfully), he did so under the guise of prosecutorial discretion. In the pre-Obama days, prosecutorial discretion was an unremarkable, uncontroversial resource-allocation doctrine. It simply meant that since resources are finite, and since it would be neither possible nor desirable to prosecute every crime, we target law-enforcement resources to get the most crime-fighting bang for the taxpayer buck. That means prioritizing enforcement action against (a) the worst offenders and (b) the unlawful causes of the activity.

This is easily illustrated by federal drug enforcement. There are comparatively few federal narcotics agents, compared, say, to police in a major city. But while both feds and cops have authority to arrest traffickers and consumers of illegal drugs, only federal jurisdiction is interstate and international. Consequently, the best use of finite federal enforcement resources is to limit them to prosecutions of significant felony importation and distribution offenses, leaving it to the states and municipalities to handle street pushers and misdemeanor violations involving the use of drugs.

Significantly, the fact that federal enforcement policy, which is made by the executive branch, does not target lesser felons or users does not mean this policy effectively repeals federal drug laws, which are written by Congress.

The non-targeted crimes are still crimes, and the feds reserve the right to prosecute them in appropriate cases (e.g., if they encounter these offenses in the course of carrying out other criminal enforcement missions).

In the area of immigration enforcement, Obama contorted this resource allocation doctrine into a de facto immunity scheme. That is, the Obama Homeland Security Department announced what it labeled enforcement “priorities.” If an illegal alien did not fit into the priorities, it was as if the alien were insulated against prosecution — effectively, it was as if there was nothing illegal about being an alien unlawfully present in the United States; it was as if Obama’s policies were a legal defense against Congress’s duly enacted laws.

The immigration-enforcement guidance issued by President Trump Tuesday morning patently aims to shift the presumption against deportation created by President Obama’s guidance.

In 2014, under the guise of setting out “immigration enforcement priorities,” Obama’s Department of Homeland Security established a three-tier system for deportation. This was quite advisedly done under the rubric of “prosecutorial discretion.” Federal agents were instructed to apply prosecutorial discretion as early in the evaluation process as possible, mindful of how sparse were resources to arrest, detain, and deport removable aliens.

The message was clear: If an alien does not fit into the top tier, do not even bother to stop and question him, much less to arrest and commence deportation proceedings. While Obama’s two lower tiers were referred to, in an Orwellian way, as “priorities” (i.e., enforcement “Priority 2” and “Priority 3”), the reality was more like immunity.

Obama’s “Priority 1” was generally labeled “threats to national security, border security, and public safety.” It included aliens engaged in terrorism, espionage, or otherwise posing a national-security threat; involved in gang violence; convicted of serious felonies; or apprehended in the act of entering the country.

Notice the effort to undermine illegal immigration as a basis for taking action. Priority 1 involved offenders who either (a) would be sought by police and national-security agents for reasons having nothing to do with their immigration status, or (b) were not illegal aliens residing in the U.S. because they never (or barely) made it into the country. The underlying (though unstated) principle is that illegally entering or remaining in the United States is not a serious matter per se; rather, it is egregious criminal activity that warrants enforcement action.

Of course, the nature of criminal activity addressed in “Priority 1” was so heinous that law-enforcement would naturally take action without regard to whether the perpetrator was an American or a non-American (legal or illegal). The subliminal point was to eradicate illegal-alien status as a salient consideration — yet to be able to say that enforcement against it was considered a “priority.”

Obama’s second tier addressed the “priority” of “misdemeanants and new immigration violators.” The thrust of this tier, however, was to give the illegal alien a defense against enforcement action. For example, an alien convicted of two misdemeanors, far from being an enforcement priority, was given immunity — agents were told that, for action to be taken, there should be three or more misdemeanors — and that these crimes had to (a) be unrelated to the alien’s illegal status, and (b) involve three separate incidents (i.e., multiple misdemeanors arising out of the same criminal transaction would count as only one conviction). Here, it is important to note that many felony arrests are reduced to misdemeanors in plea bargaining. Thus, this system was designed to insulate from deportation habitual criminals who had managed to avoid felony convictions.

At least one judge on the Ninth Circuit has requested reconsideration in the matter of State of Washington and Minnesota v. President Trump. The Ninth Circuit chief judge issued an order Friday stating that an unnamed judge among the 29 active members of the circuit court has requested an en banc hearing — meaning that eleven judges or possibly the entire panel would hear the case, rather than the select three-judge panel that issued the 3-0 ruling against Trump’s executive order.

Procedurally, any judge on the circuit court may sua sponte — on the judge’s own initiative without a party asking or moving the court through any written pleadings — request a reconsideration before a fuller bench, rather than the select panel.

The Ninth Circuit’s en banc proceedings typically only consist of eleven judges, as the controlling federal law allows that for circuits with more than 15 judges to limit en banc hearings to “such number of members of its en banc courts as may be prescribed by rule of the court of appeals.” Currently, per the Ninth Circuit’s Rule 35-3, eleven judges sit for a “limited en banc court,” which usually include the chief judge. Parties may suggest or request a hearing before the whole panel of 29 judges; however, the Ninth Circuit has never granted an en banc hearing before the entire panel.

The court’s February 10 order requires the parties to file briefs by 11:00 a.m. Pacific time on Thursday, February 16, arguing their respective positions only on whether the matter should be reconsidered before the fuller panel. Importantly, amicus (or “friend of the court”) briefs may also be filed by interested organizations on either side, seeking to advise the court whether or not to grant a rehearing.

En banc proceedings are not typical, but usually occur in cases that are considered extremely important because of the parties, the precedent value, or because they are particularly noteworthy. This case is particularly suited for a fuller panel review because of the serious issue and extreme importance to the country.