WASHINGTON -- Arizona immigration law author and Kansas Secretary of State Kris Kobach is representing 10 immigration agents in a lawsuit filed Thursday against Homeland Security Secretary Janet Napolitano, for policies they say prevent them from doing their job of defending the Constitution.
"They're being ordered by their federal-appointee superiors to break federal law, or if they don't break federal law, according to their orders they will be disciplined," Kobach said Thursday on a call with reporters. "This is an absolutely breath-taking assertion of authority and an abuse of authority."
Numbers USA, a group that advocates for reduction of immigration, is funding the lawsuit on behalf of Immigration and Customs Enforcement agents opposed to current policy. The suit goes after two key Obama policies on immigration: prosecutorial discretion to focus on criminals and repeat offenders, as well as deferred action for undocumented young people.
Kobach, who has advised presumptive GOP presidential candidate Mitt Romney on immigration issues, said that the campaign was aware of the lawsuit and had not expressed concerns with the plan.
ICE announced in August 2011 it would stop deporting some "low priority" undocumented immigrants, such as young people or those with strong ties to the U.S. On June 15, 2012, the administration took that a step further for young people. Now, under deferred action, many will be granted work authorization and two years reprieve from deportation concerns.
Republicans immediately came out against the move, saying it was an overreach because such a decision should go through Congress.
The Obama administration argues it is well within its power in enacting the policy, given the need for prosecutorial discretion. ICE agents under Obama were also instructed last year to focus removals on those undocumented immigrants considered most dangerous, from gang members and criminals to repeat immigration offenders, because deporting all of the undocumented immigrants in the U.S. is next to impossible.
Contrary to claims that it has shirked enforcement responsibilities, the Obama administration removed a record 396,906 immigrants from the United States in the 2011 fiscal year.
In defense of its prosecutorial discretion policies, the Department of Homeland Security pointed out in a statement that ICE removed more than 216,000 convicted criminals in the 2011 fiscal year.
"The Secretary's memo on Deferred Action for Childhood Arrivals is a continuation of the Department's focus on these priorities, and ensures that responsible young people, who are Americans in every way but on paper, have an opportunity to remain in the country and make their fullest contribution," DHS spokesman Matt Chandler said in a statement. "This policy is a temporary measure; Congress must still act to provide a permanent solution to fix the broken immigration system."
The National Immigration and Customs Enforcement Council, part of the American Federation of Government Employees union, put up a petition earlier this month calling for the administration to drop its deferred action and prosecutorial discretion policies. It now has more than 56,500 signatures online.
"Safety has just been thrown out the window," Chris Crane, president of the National ICE Council and a plaintiff in the suit, told reporters. "It is pretty much just let everyone go," he said later of deferred action.
Numbers USA President Roy Beck said he would like to see Romney come out and say he will end the policy -- so far the candidate has refused to say how he would handle deferred action if he became president.
Kobach remains an influential member of his party on immigration issues. On Tuesday he successfully urged the Republican platform committee to add tougher provisions on enforcement.
Three Republican congressmen from Texas -- House Judiciary Committee Chairman Lamar Smith, Rep. Louie Gohmert and Rep. John Carter -- gave their support to the ICE agent lawsuit in a statement Thursday.
"It's a sad day when ICE employees have to sue their own employer over injustices and violation of laws within the Department of Homeland Security," Gohmert said. "I support this effort to reintroduce the Obama administration to the Constitution and the fact that when Congress passes a law and the President signs it, a future President must follow the law unless it is changed. A President does not get to speak new law into existence that overrides existing law until his coronation as our first king."
UPDATE: Romney campaign spokesman Ryan Williams responded with the following comment:
"There is no question that the president's executive action is unprecedented and raises large questions as to whether it is within his authority. The courts will have to sort this out, but this kind of uncertainty is unacceptable as these young people brought here as children are seeking clarity on their long-term status. The president's action ruined a bipartisan effort in Congress to forge a long-term solution for these young people. Mitt Romney will work with Congress to forge a long-term solution that will supersede the president's stop gap measure and give these young people certainty."
Also on HuffPost:
The Template: California Proposition 187 (1994)
California's Proposition 187 was submitted to the voters with the full support of then Republican governor Pete Wilson. It essentially blamed undocumented immigrants for the poor performance of the state economy in the early 1990s. The law called for cutting off benefits to undocumented immigrants: prohibiting their access to health care, public education, and other social services in California. It also required state authorities to report anyone who they suspected was undocumented. <strong>Status:</strong> The law passed with the support of 55 percent of the voters in 1994 but declared unconstitutional 1997. The law was killed in 1999 when a new governor, Democrat Gray Davis, refused to appeal a judicial decision that struck down most of the law. Even though short-lived, the legislation paved the way for harsher immigration laws to come. On the other hand, the strong reaction from the Hispanic community and immigration advocates propelled a drive for naturalization of legal residents and created as many as one million new voters.
The Worst: Arizona SB 1070
The Arizona Act made it a misdemeanor for an undocumented immigrant to be within the state lines of Arizona without legal documents allowing their presence in the U.S. This law has been widely criticized as xenophobic and for encouraging racial profiling. It requires state authorities to inquire about an individual's immigration status during an arrest when there is "reasonable suspicion" that the individual is undocumented. The law would allow police to detain anyone who they believe was in the country illegally. <strong>Status:</strong> The law was signed into law by Arizona Governor Jan Brewer on April 23, 2010. But it has generated a swirl of controversy and questions about its constitutionality. A federal judge issued a ruling that blocked what critics saw as some of the law's harshest provisions. House: 35-31 (4/12/2011)
Following Arizona's Footsteps: Georgia HB 87
The controversy over Arizona's immigration law was followed by heated debate over Georgia's own law. HB 87 required government agencies and private companies to check the immigration status of applicants. This law also limited some government benefits to people who could prove their legal status. <strong>Status:</strong> Although a federal judge temporarily blocked parts of the law considered too extreme, it went into effect on July 1st. 2011. House: 113-56 Senate: 39-17
Verifying Authorized Workers: Pennsylvania HB 1502
This bill, which was approved in 2010, bans contractors and subcontractors employ undocumented workers from having state construction contracts. The bill also protects employees who report construction sites that hire illegal workers. To ensure that contractors hire legal workers, the law requires employers to use the identification verification system E-verify, based on a compilation of legally issued Social Security numbers. <strong>Status:</strong> Approved on June 8th 2010. House: 188-6 (07/08/2010) <a href="http://www.flickr.com/photos/donkeyhotey/" target="_hplink">Flickr photo by DonkeyHotey</a>
A Spin Off of Arizona: Utah HB 497
Many states tried to emulate Arizona's SB 1070 law. However, most state legislatures voted against the proposals. Utah's legislature managed to approve an immigration law based on a different argument. Taking into consideration the criticism of racial profiling in Arizona, Utah required ID cards for "guest workers" and their families. In order to get such a card workers must pay a fee and have clean records. The fees go up to $2,500 for immigrants who entered the country illegally and $1,000 for immigrants who entered the country legally but were not complying with federal immigration law, <a href="http://articles.latimes.com/2011/mar/06/nation/la-na-illegal-immigration-20110306" target="_hplink">according to the LA Times.</a> <strong>Status: </strong> Law went into effect on 03/15/2011 House: 59-15 (03/04/2011) Senate: 22-5 (03/04/2011)
The Most Comprehensive: Florida HB-1C
Florida's immigration law prohibits any restrictions on the enforcement of federal immigration law. It makes it unlawful for undocumented immigrants within the state to apply for work or work as an independent contractor. It forbids employers from hiring immigrants if they are aware of their illegal status and requires work applicants to go through the E-verify system in order to check their Social Security number. <strong>Status: </strong>effective since October 1st, 2010
The Hot Seat: Alabama HB 56
The new immigration law in Alabama is considered the toughest in the land, even harder than Arizona's SB 1070. It prohibits law enforcement officers from releasing an arrested person before his or her immigration status is determined. It does not allow undocumented immigrants to receive any state benefit, and prohibits them from enrolling in public colleges, applying for work or soliciting work in a public space. The law also prohibits landlords from renting property to undocumented immigrants, and employers from hiring them. It requires residents to prove they are citizens before they become eligible to vote. The law asked every school in the state to submit an annual report with the number of presumed undocumented students, but this part, along with others, were suspended by federal courts. <strong>Status:</strong> Approved June 2nd, 2011 House: 73-28 (04/05/2011) Senate: 23-11 (05/05/2011) <a href="http://www.flickr.com/photos/longislandwins/" target="_hplink">Flickr photo by longislandwins</a>