Behind the White House Maneuvering on Migrants

Politico

By David Rogers

August 19, 2014

Behind the White House maneuvering on migrants 

The White House fax arrived at the Senate on July 22 with no letterhead attached and an almost Onion-like heading: “Deliberative Pre-decisional Technical Assistance.”

Days before, on July 17, Homeland Security Secretary Jeh Johnson had met with Sen. Dianne Feinstein (D-Calif.) to discuss changes in law sought by President Barack Obama to speed the deportation of unaccompanied child migrants who had been crossing the Rio Grande from Central America in record numbers.

The three and a half pages of draft legislation — faxed to Feinstein’s office — represented the work of attorneys at the White House and Homeland Security trying to answer her demands that the administration be more specific.

A month later, that single fax still stands out as the closest Obama ever got to spelling out his legislative proposal.

Even then, as the obscure title suggests, there were no public commitments, no presidential fingerprints. And the White House still refuses requests from POLITICO to see the draft, the outlines of which were described by several people familiar with the document.

Looking back, it’s a remarkable picture of how Washington works — and doesn’t. A failure all the more striking in a crisis so very American in nature and all about children.

Obama, trained at Harvard Law and surrounded by attorneys, never spelled out the changes in law he wanted — changes that would directly affect child migrants, who most often have no attorneys of their own.

All this from a White House so eager to make the statutory changes that it gave an advance story to The New York Times on Saturday, June 28 — two days before sending its letter to Congress on Monday, June 30, informing lawmakers.

“Obama to Seek Funds to Stem Border Crossings and Speed Deportations,” read the Times headline.

The supplemental request had been anticipated for a month. The real news was the second half: the request for new authority to speed deportations.

The decision to go public June 28 followed morning phone calls that same Saturday in which the White House consulted about a dozen top Democratic players in Congress and felt encouraged to go forward. But the haste with which the administration then rushed to leak its plans for the Sunday papers — without first having draft legislation in place — quickly aggravated an already dicey political situation.

In the ensuing debate, the absence of any clear White House alternative left all the writing to Republicans, who seized the chance to press for far greater changes than Obama envisioned.

It was not until July 11 — two weeks later — that the administration had its first group meeting with Democratic committee staffers whose job would be to write such legislation. The White House’s stated goal was to honor the human rights claims of the children while establishing more of a deterrent to their coming by dramatically cutting the time for deportation proceedings. But the administration came with no drafts in hand to show how it proposed to achieve this balance.

Adding to the confusion, really two bills were in play. The president’s June 30 letter — which first spoke of his wanting additional authority from Congress — was only a preamble to a second, July 8 letter spelling out Obama’s request for $3.73 billion in emergency funding to cope with the crisis.

By then the administration — in response to Senate Appropriations Committee Chairwoman Barbara Mikulski (D-Md.) — was separating the two issues: money to deal with immediate needs and changes in law going forward.

The White House now insists this was always its intention. But nothing in the Times advance story June 28 suggested a two-track approach. And Obama himself was still melding the two as late as July 9 after meeting with Texas Gov. Rick Perry on the border crisis.

Speaking of his talks with Perry, Obama said the governor had expressed “concern that right now kids who come to the border from Mexico are immediately deported, but because it’s noncontiguous, folks who are coming from Central America have to go through a much lengthier process.”

“I indicated to him that part of what we’re looking [for] in the supplemental is some flexibility,” the president said, “in terms of being able to preserve the due process rights of individuals who come in, but also to make sure that we’re sending a strong signal that they can’t simply show up at the border and automatically assume that they’re going to be absorbed.”

Belatedly, the White House did reach out, and, in fairness, some of the criticism leveled by Democrats in Congress is self-serving.

Obama met with the Congressional Hispanic Caucus on July 16. Following the July 11 staff meeting, there was a second session between White House and top congressional staffers on July 18 to explore what compromises were possible. But the situation had deteriorated to the point where neither side seemed to trust the other.

Democrats complained of being manipulated by an administration too cute to put its name behind a bill. The White House, which had hoped to “partner” with Democrats, came away feeling it was damned if it did, damned if it didn’t.

Publicly, lawmakers might complain of seeing nothing in writing, officials said. But privately, staff said their bosses would be furious if the White House were to submit legislation at this stage.

Feinstein — who was seen by the administration as someone who might have provided some opening — was more the exception. But even that exchange was sensitive for other Democrats, and Feinstein soon clammed up on the matter.

Repeated requests by POLITICO to speak to the senator were rejected. Written questions were submitted in advance and went unanswered. The California Democrat, as chairwoman of the Senate Intelligence Committee, was said to be too focused on other matters. Instead her press office referred a reporter to the senator’s floor speech July 30 — a speech that said nothing about the fax.

What Feinstein did talk about was her role in writing the 2008 law at issue now: the William Wilberforce Trafficking Victims Protection Reauthorization Act.

Adopted with broad support at the end of George W. Bush’s presidency, the law built on earlier efforts in 2002 to have unaccompanied child migrants separated from adults quickly and turned over to the Department of Health and Human Services. The 2008 statute took this a big step further by adding protections for those who travel greater distances from Asia, for example, or, in this case, Central America — countries not contiguous to the U.S. border.

“The numbers are so great and so unprecedented that our federal agencies understandably are having difficulty carrying out the procedures and timelines in place,” Feinstein said of the child migrants and the 2008 law. But she was mum about meeting with Johnson on how to legislate changes in those procedures. The White House fax sent to her office was never mentioned.

Senate Democrats, with whom Feinstein shared the White House draft, were no more open. “Very sorry, but we can’t help you on this one,” was the answer that came back from even the talkative Sen. Chuck Schumer (D-N.Y.).

For all this silence, speculation abounds that the president will resort to executive orders to get what he wants. But there are still serious doubts in the administration that Obama has that authority in the case of the child migrants. And however dysfunctional Congress has become, can a president turn to executive orders when he never submitted a bill?

For the moment, the flow of children at the southwest border has now subsided in the summer heat. Congress is gone for August. Wars in Iraq, Gaza and Ukraine and racial unrest in Missouri command more attention.

After failing to act, the administration and lawmakers have patched over their differences enough to get through September without the emergency funds requested by the president.

But the issue will come back to the fore next month when lawmakers take up a stop-gap continuing resolution, or CR, needed to keep the government operating past the November elections.

To save money — and appease Republicans — HHS has already begun to pull children out of more costly temporary shelters at military bases. At the same time, the House and Senate Appropriations committees have signed off on Johnson shifting about $405 million within his department to meet the immediate needs of border patrol and immigration agencies.

The biggest remaining sore point is the Republican refusal to allow just $4 million requested by Attorney General Eric Holder to help provide some legal counsel for the children, when called before the immigration courts for deportation proceedings.

Many are under 14 and unable to speak English — “It’s Dickensian,” said one Democratic aide. The standoff echoes Obama’s own failure to ever submit the changes in law that he wanted.

Like all immigration law, two values compete in this crisis. First is the sovereign right of the U.S. to control its borders. Second is America’s broader commitment to human rights, represented here by the children themselves.

Indeed, the U.S. has a long history of Pan-Americanism in its approach to immigration policy, and it was only in the 1960s that Congress began imposing numerical national-origin quotas on Western Hemisphere countries. Critics would argue that those quotas were set so low that they inevitably created “illegal aliens” — a label that next fed into a political fear of chaos at the border, a chaos that makes it harder to see the human side of what the child migrants are in this case.

Professor Mae Ngai is a historian at Columbia University whose book “Impossible Subjects: Illegal Aliens and the Making of Modern America” is relevant here.

Ngai focuses on the period from post-World War I to the 1960s and the historical origins of the “illegal alien” label in American law and politics after the U.S. began imposing a system of national-origins quotas.

Discrimination was not new. But the Johnson-Reed Act of 1924 was the first comprehensive set of restrictions, establishing numerical limits and its own global racial and national hierarchy. Countries of Southern and Eastern Europe received smaller allotments to exclude Italians, Slavs and Jews. Chinese and Japanese were barred entirely.

The Hart-Cellar Act — reflecting the civil rights movement of the 1960s — sought to end this discrimination and instituted a policy based more on individual qualifications, with preferences for professionals and relatives of immigrants who had already established themselves in the U.S. But it was a far cry from the vision first espoused by its chief Senate sponsor, Sen. Phil Hart (D-Mich.). And in the final bargaining, Sens. Sam Ervin (D-N.C.) and Everett Dirksen (R-Ill.) insisted that the quotas be extended to nations in the Western Hemisphere.

“Restrictions beget illegality, and then people focus on illegality,” Ngai said, and she plainly wishes that policymakers would look back more to the vision put forward by Hart.

“The Hart bill was a combination of American needs and other countries’ needs, which is something we never think about anymore,” she said. “We think of immigration as something we decide unilaterally in the nation’s interest, in America’s interest. Hart had a much different view. He had a view that immigration should be thought of kind of a global phenomenon … and other countries’ needs and interests should be a factor. … Hart was trying to get to something beyond a unilateral system.”

When the CR debate comes in September, there will again be the opportunity for compromise on how to deal with the child migrants. But many believe the well is so poisoned at this stage that any deal before November’s elections seems impossible.

The challenge is best captured by two voices — Republican and Democratic — from this summer’s debate.

One belongs to Rep. Jeff Fortenberry (R-Neb.), who embraced the hard line taken by the House GOP but also comes from a conservative religious background that has allied him in the past with refugee and relief efforts sympathetic to the children.

“The United States cannot have a just and vibrant and good immigration policy when there is chaos and disorder at the border,” he told a Nebraska radio station with some frustration. “It undermines our ability to be generous.”

The other is Rep. José Serrano (D-N.Y.), one of the most senior Hispanic lawmakers in the House.

“At the end of the day, the question may not be: Who are the children at the border, and why are they here? The question may be: Who are we as a nation, and why are we here as a Congress?” Serrano told his colleagues.

“We have to understand that these are children,” Serrano said. “These are our children. Just because a border separates us, this doesn’t stop them from being our children.”

For more information, go to:  www.beverlyhillsimmigrationlaw.com