By R. MARK FREY
ST. PAUL (April 4, 2015) — During the past few days, I’ve been sorting through numerous boxes of ‘things’ that have accumulated ‘historic distinction and dust’ while sitting in storage for a number of years, trying to separate what’s really needed from what needs to go.
One box contained a number of dog-eared “Mad” magazines with the ever-present image of grinning, gap-toothed Alfred E. Neuman, purchased and read several decades ago over the course of a number of misspent Saturday afternoons in the hill country of southern Iowa. Running across the grinning, clueless Neuman brought a chuckle and a few fond memories of the magazine’s biting, satirical take on the world. At the same time, I couldn’t help but think about Congress and its continued inability to get anything done, especially in the realm of immigration reform.
As you may recall, just a few short weeks ago, Congress avoided the near fiasco of shutting down the Department of Homeland Security following the intervention of some pragmatic members with cooler heads and last minute maneuvering. So, what’s the likelihood that this august body will find the wherewithal to tackle comprehensive immigration reform if it dithers over the funding and operation of the agency empowered to keep the country safe from those who wish it harm? Sad to say, it doesn’t seem likely, not at least before the 2016 elections.
So what’s to be done? Well, perhaps it’s up to the states if Congress fails to act on this significant issue. A few days ago, an intriguing, thoughtful piece and graphic prepared by journalist Julia Preston and Haeyoun Park, respectively, appeared in the “New York Times”, addressing that very issue and the tacks taken by various states as the number of problems facing undocumented immigrants continues to grow in the United States. The insights were staggering. Consider, for example, that in California and Washington among others, individuals without immigration status may hold driver’s licenses, ensuring that they understand the rules of the road and carry auto insurance. Other states, such as Texas, do not allow such individuals to obtain driver’s licenses, leaving them in the precarious position of driving without both a license and insurance coverage, ever wary of being stopped by the police for any reason. Which situation, do you think, is more likely to contribute to greater traffic safety?
In like manner, several states, including Minnesota and Colorado, have developed programs allowing undocumented immigrants to attend public colleges at in-state tuition rates. In a less welcoming fashion, however, some states such as Arizona, have passed laws allowing the police to ask anyone arrested about immigration status if suspected of being in the country without status. Isn’t there a potential for abuse with racial profiling here?
Undoubtedly the highest profile issue of the day is that concerning President Obama’s November 2014 executive actions granting deferred action status and work authorization to certain eligible individuals now in the country without status. It is now before the courts and hopefully we will soon see a resolution to the controversy. As in so many aspects of states’ treatment of immigrants, we see different perspectives and stands on the issue. Almost an equal number of states have submitted friends of the court briefs contending the executive actions are an unconstitutional exercise of presidential power while others argue President Obama is merely exercising prosecutorial discretion, an age-old aspect of power held in the executive branch.
Although, it is gratifying to see some states address some of the problems facing immigrants and puzzling to find others endeavoring to exclude and drive them out in this, a country of immigrants, it’s simply not realistic to view states as the final arbiters of immigration policy. We would end up with a form of balkanization – immigrant zones; some states being pro-immigrant and others, anti-immigrant. Congress is empowered to pass legislation in the realm of immigration matters. And, while the president is authorized to decide how to implement that legislation in, for example, the exercise of his prosecutorial discretion, Congress is the body to take action. Unfortunately, it’s not doing it. And, that image of Alfred E. Neuman keeps coming to mind. Clueless.
R. Mark Frey is a St. Paul, Minnesota attorney who has practiced immigration law exclusively for more than 25 years with an emphasis on political asylum, family and marriage-based immigration, naturalization, removal defense, appeals, H-1B visas, and religious workers.