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< Back to current issue of Immigration Daily

Bloggings on Immigration Law

Roger Algase

More about rearranging deck chairs on the immigration Titanic

June was a month of great promise for immigration, or so it seemed. First, President Obama instructed the Department of Homeland Security to issue a memo (not an "executive order") putting much of the DREAM Act, which had been defeated by a Republican filibuster threat (and five Democratic Senators who failed to vote for cloture) into temporary effect. Of course, we do not know exactly when the affected DREAMer's will actually be able to apply for relief, but not to worry - help is on the way. 

Even more exciting was Chief Justice Roberts' decision to join the liberal majority in throwing out much, but by no means all, of Arizona's SB 1070 Achtung! Wo sind Ihre Papiere? (AWSIP) anti-Mexican immigrant hate law. There are many interesting legal issues raised by both the president's initiative and the Supreme Court majority's ruling which some of my colleagues are exploring thoroughly, and there is no need for me to try to add anything to their important and valuable comments. 

However, what would happen if President Obama's DREAM initiative were suddenly cancelled? And what would happen if the federal government were to announce that it will fully cooperate with enforcement by the states of the part of Arizona's law that was left standing, and will encourage many more states to adopt similar laws?

Or, even worse, suppose that a Republican Congress and president, using the Supreme Court's reaffirmation of the doctrine of federal supremacy over immigration enforcement, enact a law far worse than even the original Arizona statute (or the one in Alabama), making every day of presence in the US without legal status a separate federal felony punishable by up to five years in prison?

Never happen, you say? Go back and read HR 3447 which was passed by the Republican House of Representatives in late 2005 under Wisconsin Congressman James Sensenbrenner. but, fortunately, never made it to the Senate. At least, that is how I read that bill, which would also have made it a felony for any American to give "assistance" (a tip? - a car ride?) to anyone who had violated even the most trivial or technical immigration regulation (a felony as well - you guessed it).

If that bill had passed, no one could have argued that it was unconstitutional under federal pre-emption. (Maybe there would be a 10th Amendment states rights argument? Justice Scalia's dissent in the Arizona case might no doubt prove helpful on that score.)

But, sarcasm aside, there could be some very rough seas ahead for the ship of immigration rights, if the Republicans win in November. And it is not as if they have made any secret about what their plans for the future of immigration are. Romney has already announced that Obama's DREAM initiative would not survive Romney's first day in office. He would "rescind and replace" it. Rescind we can understand. But replace? With what? An updated, and possibly even harsher (if that were possible) version of HR 3447?

Having already established my record as a forecaster by making totally (and fortunately) wrong predictions about last week's two major Supreme Court decisions - at least I had plenty of company - I will now make another prediction: The Republicans will win the White House and both Houses of Congress this fall - and perhaps by a comfortable margin, as happened in Wisconsin's recall election.

How do I know this? The answer is simple. Just follow the super-pac money. There is no way that the Democrats can possibly win in November if they are outspent 4-1 or 5-1, as they surely will be - witness Obama's desperate pleas for money to former big Democratic donors who are now turning a tin ear to him. This year's election is guaranteed to be the most corrupt, one sided election since the 19th century - or maybe even including the 19th century. The Democrats will not have a chance.

Immigration supporters, we are on the Titanic. Get ready for the iceberg. Let's enjoy arranging the deck chairs of DREAM and the SB 1070 victory (such as it is) while we still can. There will not be much lime left. But wait - maybe there is some reason to hope - my last predictions were way off. Maybe this one will be too.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.