1NC - mrdickson.net  · Web viewAnother important measure which the US has failed to hitherto ratify is the Comprehensive Test Ban Treaty (CTBT). This is despite President Obama

1NC

The 1st Off is Effects T A. Interpretation: ‘reduce’ refers to a process, not an outcome --- the plan itself must decrease its restrictions on legal immigration --- it cannot simply lead to it

Public Law 87-253 (Omnibus Budget Reconciliation Act of 1982, 97th US Congress, Sept 8, 1982, Lexis)

E) Prior to approving any application for a refund, the Secretary shall require evidence that such reduction in market- ings has taken place and

that such reduction is a net decrease in marketings of milk and has not been offset by expansion of production in other production facilities in which the person has an interest or by transfer of partial interest in the produc- tion facility or by the taking of any other action. which is a scheme or device to qualify for payment.

B. Violation: the plan does not directly decrease restrictions on legal immigration.

C. Standards

1. Limits- the aff completely explodes the limits of the resolution because they could take any number of steps to eventually get access to topical action.

2. Aff burden- It mixes burdens – to determine topicality through effect, you have to look to solvency, which is crossing the stock issues and is theoretically illegitimate.

3. Vacuum test- the only way to determine whether a plan is topical or not is to directly view the plan text through a vacuum. If the plan is proven not topical then the aff is not topical.

D. Voters

1. A Priori

2. Fairness

3. Education

Next Off is a Restrictions T

Interpretation

Restrictions means a (plural) collection of restrictions

Wordhippo 3/7/2019 https://www.wordhippo.com/what-is/the-plural-of/restriction.html

However, in more specific contexts, the plural form can also be restrictions e.g. in reference to various types of restrictions or a collection of restrictions .

Violation:

The affirmative team is not reducing a collection of restrictions, only reducing one or none

Standards:

A. Bright Line: Definition is better because it draws a clear distinction between what is topical and what is not whereas aff definition is vague.

B. Grammatical Context: Definition is better because it fits into the resolution and still works.

Voters:

A. Debatability: We can prepare for only those cases that fall under the resolution and should not be voted against because we could not debate a nontopical case.

B. Jurisdiction: It is not within your jurisdiction as judge to vote for a nontopical case.

Next Off is the Auction Counter-Plan

Plan: The United States federal government should expand prosecutorial discretion over legal immigration to the United States in the area of [plan].Prosecutorial discretion provides relief for undocumented immigrants without requiring Congressional action.Uriarte 14 – Paola Uriarte, J.D from Brooklyn Law School, Immigrant Justice Corps Fellow at Central American Legal Assistance, 2017 (“Discretionary Reform: Prosecutorial Discretion as the Only Effective Immigration Reform in Today's Polarized Congress,” Brooklyn Law Review, 2014, Available Online at https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1042&context=blr, Accessed 7/25/18, nhs, IY)

FAILED ATTEMPTS AT IMMIGRATION REFORM Although it does not confer permanent immigration status, prosecutorial discretion has been a more effective mechanism for temporary immigration reform than current enacted legislation. To demonstrate this, this section compares the exercise of prosecutorial discretion in DACA with the Immigration Reform and Control Act (IRCA) and the Temporary Protected Status (TPS) provision of the Immigration Act of 1990, two congressionally enacted immigration policies that failed to meet their goals. By comparing DACA to IRCA and

TPS, this section seeks to demonstrate that prosecutorial discretion, although it does not confer permanent immigration status, is a more effective mechanism for temporary immigration reform . A. The Immigration

Reform and Control Act (IRCA) The Immigration Reform and Control Act of 198669 made it illegal for employers to knowingly hire undocumented immigrants, and imposed a penalty on those who did not verify their employees’ immigration status within three days of their hires.70 In addition, IRCA provided amnesty to certain groups of undocumented immigrants who could prove their continuous 67 These are all similar factors that were emphasized for discretionary relief in the Morton memo. See Morton, Civil Immigration Enforcement, supra note 50, at 2. 68 See generally Meissner Memo, supra note 7; Memorandum from Julie L. Myers, Assistant Sec. of Immigr. and Customs Enforcement, on Prosecutorial and Custody Discretion (Nov. 7, 2007), [hereinafter Myers Memo], available at http://www.scribd.com/doc/22092973/ICE-Guidance-Memo-Prosecutorial-Discretion-JulieMyers-11-7-07; Morton, Civil Immigration Enforcement, supra note 50. 69 Pub. L. No. 99-603, 100 Stat. 3359 (1986). 70 8 U.S.C. § 1324a (2012); see also 8 C.F.R. § 274a.2(b)(1)(ii). 2014] PROSECUTORIAL DISCRETION & IMMIGRATION REFORM 911 presence in the United States since January 1, 1982,71 as well as to certain farm workers under the Special Agricultural Worker program.72 The goals of IRCA were to deter illegal immigration and protect American workers from wage competition with undocumented immigrants.73 The penalty imposed on employers who hired undocumented immigrants was balanced by an amnesty to the millions of undocumented immigrants already in the country.74 According to a study by the Migration Policy Institute, the amnesty granted legal status to approximately three million undocumented immigrants.75 This did not result in a decrease in illegal immigration, however.76 Instead, illegal immigration and employment discrimination increased in the years following IRCA, defeating the statute’s initial goals.77 Indeed, many opponents of comprehensive immigration reform have used IRCA’s failure to decrease illegal immigration to argue against DACA as yet another form of amnesty to another large sector of the undocumented population.78 But unlike IRCA, DACA seeks to prioritize immigration enforcement resources by granting a group of young, educated and productive members of American society temporary reprieve from deportation.79 DACA’s purpose is not to curb illegal immigration, but rather to give an affirmative structure to the already-utilized mechanism of prosecutorial discretion in granting deferral to certain immigrants whom the executive branch thought to be both worthy of reprieve and crucial to the productivity and cultural fabric of American society.80 IRCA’s 71 8 U.S.C. § 1255a(a)(2)(A) (2012). 72 8 U.S.C. § 1160(g) (2012). 73 Michael J. Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007 U. CHI. LEGAL F. 193, 201 (2007). 74 Christopher Angevine, Amnesty and the “Legality” of Illegal Immigration: How Reliance and Underenforcement Inform the Immigration Debate, 50 S. TEX. L. REV. 235, 240 (2008). 75 Betsy Cooper & Kevin O’Neil, Lessons from the Immigration Reform and Control Act of 1986, Policy Brief No. 3, MIGRATION POL’Y INST., Aug. 2005, available at http://www.migrationpolicy.org/pubs/PolicyBrief_No3_Aug05.pdf; see also Wishnie, supra note 73, at 205-06. 76 Id. 77 Richard A. Johnson, Twenty Years of the IRCA: The Urgent Need for an Updated Legislative Response to the Current Undocumented Immigrant Situation in the United States, 21 GEO. IMMIGR. L.J. 239, 251-52 (2007). 78 A Reagan Legacy: Amnesty for Illegal Immigrants, NAT’L PUB. RADIO (July 4, 2010), http://www.npr.org/templates/story/story.php?storyId=128303672. 79 Napolitano Memo, supra note 5, at 3. 80 See June 15, 2012 News Release supra note 58 (“These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag. . . . [I]t makes no sense to expel talented young people. . . who want to staff our labs, or start new businesses, or defend our country. . . 912 BROOKLYN LAW REVIEW [Vol. 79:2 amnesty provision, on the other hand, was primarily meant to balance strict new sanctions for employers who propagated the influx of undocumented immigrants, in the hopes of directly curtailing illegal immigration.81 In addition, IRCA’s amnesty provision provided a vehicle for undocumented immigrants to adjust status and receive legal permanent residence, and eventually, citizenship.82 DACA does not and cannot provide amnesty. Indeed, the President does not have the power to confer such a status adjustment unilaterally.83 The comparisons between IRCA and DACA stem from the significant immigration relief that DACA confers on its applicants. But DACA is considerably different than the IRCA amnesty. DACA can be more aptly described as a humanitarian exercise of prosecutorial discretion.84 It aims to maintain the benefits of having particular members of society remain in the United States, and elicits a closer examination of the types of deportations that should be implemented. DACA acknowledges the existence of a class of undocumented immigrants that are not only productive members of American society, but have their lives ingrained in American culture, and often do not remember their home country nor have any family there. For these young immigrants, the United States is their home country. DACA is not a permanent solution, but it is a step toward a more humanitarian, efficient, and fair immigration policy. IRCA, on the other hand, was another failed attempt by Congress to please ideologically opposed factions in the immigration reform debate. these young people are going to make extraordinary contributions, and are already making contributions to our society.”). 81 Wishnie, supra note

73, at 205-06. 82 Id. at 194-95 n.8. 83 Congress has delineated the procedures for granting immigration status in the Immigration and Nationality Act. See 8 U.S.C. § 1154 (2012); Meissner Memo, supra note 7, at 3. These procedures cannot be circumvented by the president and the exercise of prosecutorial discretion does not confer these benefits. See U.S. Const. art. II, § 3 (requiring the President to “take care that the laws be faithfully executed” even when he politically disagrees with Congress). 84 The language in DACA can be traced back to the language used in both the Meissner and Morton Memos. The emphasis on prioritizing deportations of criminal aliens while focusing on humanitarian factors such as young age, length of residency in the United States amongst others in the exercise of prosecutorial discretion makes DACA consistent with the policies of immigration enforcement expounded since 2000. Meissner Memo, supra note 7, at 7; Morton, Exercising Prosecutorial Discretion, supra note 50, at 5. 2014] PROSECUTORIAL DISCRETION & IMMIGRATION REFORM 913 B. Temporary Protected Status (TPS) DACA grants temporary status and employment authorization to a specified group of undocumented immigrants.85 Likewise, the Immigration Act of 1990’s Temporary Protected Status provision granted power to the Attorney General to provide temporary status to immigrants who were unable to return to their country due to ongoing armed conflict, environmental disaster, or other extraordinary circumstances.86 TPS is codified under 8 U.S.C. § 1254a, and its benefits defined as the authorization for “the alien to engage in employment in the United States and provide the alien with an ‘employment authorized’ endorsement or other appropriate work permit.”87 TPS arose from a campaign to grant temporary refuge to Salvadorans who fled the civil conflict in that country.88 Focusing on the humanitarian and political concerns of the Salvadoran war, Congress chose to extend protection to those who fled, granting them a temporary reprieve from deportation and legal employment status.89 As the Immigration Act of 1990 conference report explained, the TPS legislation was meant to ensure refuge for Salvadorans who faced civil conflict in their home country. The United States’ heavy involvement in the Salvadoran conflict carried “responsibilities [of] humanitarian concern toward the Salvadorans . . . .”90 Former Democratic 85 Napolitano Memo, supra note 5, at 2. 86 The original text of 8 U.S.C. § 1254a(b) reads: (1) In general The Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if— (A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety; (B) the Attorney General finds that— (i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected, (ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and (iii) the foreign state officially has requested designation under this subparagraph; or (C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States. 8 U.S.C. § 1254a (b)(1)(2012). 87 Id. § 1254a (a)(1)(B). 88 Eva Segerblom, Temporary Protected Status: An Immigration Statute That Redefines Traditional Notions of Status and Temporariness, 7 NEV. L. J. 664, 665 (2007). 89 Id. 90 136 Cong. Rec. S17106-01 (1990) (Statement of Sen. Dennis Deconcini). 914 BROOKLYN LAW REVIEW [Vol. 79:2 Senator for Arizona Dennis Deconini added, “I do not believe that we should return these individuals to a country immersed in a civil war in which we are actively involved.”91 This temporary status was granted at the discretion of the Attorney General as “essentially an exercise of prosecutorial discretion.”92 Many problems have emerged, however, from the first grant of state TPS designation to El Salvador in 1990, to the most recent, Syria in 2012. The humanitarian and political purposes behind the statute were dwarfed by the rise of gross unfairness and limited reprieve to TPS recipients.93 Although congressionally enacted, TPS does not confer tangible immigration benefits to its recipients. This means that anyone who finds himself out of TPS may face deportation, and anyone with TPS is unable to ever obtain permanent residence or citizenship, or give TPS to immediate family.94 As it stands today, TPS grants nationals of a designated foreign state only temporary work authorization if they meet certain statutory requirements: continuous physical presence from the time of state designation, admissibility as an immigrant pursuant to 8 U.S.C. § 1182,95 and timely registration during the registration period.96 Furthermore, as a function of being employed in the United States, these immigrants must pay federal and state taxes,97 but are barred from receiving Social Security benefits, which they pay into for many years as their state designation is renewed.98 When a nation continues to suffer from internal conflict or environmental disaster, and is time and again re-designated under TPS, the beneficiaries of TPS from that nation are left in an 18-month limbo.99 The 18-month period may be renewed if the country is re-designated under TPS, but it could also be terminated. Although eligible to work legally in the United States, TPS recipients suffer from gross inequalities and no 91 Id. 92 Susan Martin et al., Temporary Protection: Towards A New Regional and Domestic Framework, 12 GEO. IMMIGR. L.J. 543, 548 n.19 (1998). 93 Segerblom, supra note 88, at 671. 94 Id. 95 There are several specified health, criminal, and other grounds of inadmissibility for aliens seeking admission as defined under this section of the statute. 8 U.S.C. § 1182 (2012); see generally U.S. Citizenship and Immigration Services, Temporary Protected Status Eligibility Requirements (last updated June 18, 2013), available at http://www.uscis.gov/tps. 96 8 U.S.C. § 1254a(c) (2012). 97 See Segerblom, supra note 88, at 671. 98 Id. 99 Temporary Protected Status state designation is re-evaluated every 18 months. See 8 U.S.C. § 1254a (b)(3) (2012); Temporary Protected Status Eligibility Requirements, supra note 95. 2014] PROSECUTORIAL DISCRETION & IMMIGRATION REFORM 915 pathways to permanently remain in the nation they have worked and fostered a life in. When designation is terminated, frequently without sensible consideration as to the current condition of the designated nation, hundreds of former-TPS recipients face deportation, often to a country they no longer recognize.100 As described in relation to the termination of TPS for Montserrat,101 “292 nationals of Montserrat were thrown out of a country they had lived in for eight years . . . [T]axes and Social Security . . . paid are of no benefit to them now as they are forced out of the country. [I]f a national of Montserrat TPS recipient is found . . . he will be placed in removal proceedings.”102 A 2011 study by the Congressional Research Service found that there are approximately 217,000 Salvadorans, 48,000 Haitians, and 66,000 Hondurans currently living in the United States under TPS.103 If terminated, deportation proceedings would commence for 331,000 individuals. The harsh consequences of termination of TPS designation create pockets of American immigrant society that are living with a constant fear that their immigrant-status will be revoked—a circular kind of immigration reform that is inefficient and cold. The similarities between TPS and DACA are undeniable. Both forms of relief arose from political, humanitarian, or economic factors. Both applications grant a temporary reprieve from deportation, while conferring employment eligibility on its recipients.104 In addition, both TPS and DACA focus on particular sectors of the immigrant population, and do not act as a comprehensive amnesty provision.105 And both applications are granted under strictly discretionary terms, with several limiting factors. 100 Segerblom, supra note 88, at 674-75. 101 Montserrat TPS was initially designated in 1997 as a result of an active volcano which forced evacuations of more than half the island and destroyed most of its infrastructure. Id. at 674. 102 Id. 103 Ruth Ellen Wassem & Karma Ester, Temporary Protected Status: Current Immigration Policy and Issues, Congressional Research Service (Dec. 13, 2011), http://fpc.state.gov/documents/organization/179582.pdf. 104 U.S. Citizenship and Immigration Services Frequently Asked Questions, supra note 66; see also Temporary Protected Status Eligibility Requirements, supra note 95. 105 TPS affected only aliens who were present in the United States at the time their country was designated for protection. Any other national of these designated countries who fled after designation was ineligible for TPS. DACA would similarly affect young undocumented immigrants who are present in the United States at the time of designation, but also aliens under the age of 30, among other specific criteria that limits its impact. See U.S. Citizenship and Immigration Services Frequently Asked Questions, supra note 66; see also Temporary Protected Status Eligibility Requirements, supra note 95. 916 BROOKLYN LAW REVIEW [Vol. 79:2 Unlike TPS however, DACA confers more than just employment authorization and tax-paying obligations. DACA recipients are potentially eligible for state benefits such as driver’s licenses and in-state college tuition.106 In addition, DACA is said to affect a larger population than TPS ever did, bringing a significant percentage of young, productive, but undocumented, members of American society out of the shadows.107 Most signific 2014] PROSECUTORIAL DISCRETION & IMMIGRATION REFORM 917 suggests that DACA recipients seek to be further integrated into U.S. society.”111 Beyond humanitarian inclinations, DACA is more effective than TPS because it implicitly values the benefits to American society that DACA beneficiaries contribute. It also provides a temporary solution in order to push forward legislation that provides a more permanent fix. III. COMPREHENSIVE IMMIGRATION REFORM TODAY In light of changing immigration policies, on June 27, 2013, the United States Senate passed S.744, the “Border Security, Economic Opportunity, and Immigration Modernization Act,”112 the most significant and moderate immigration legislation to come before Congress in recent years.113 A bipartisan group of eight senators from both Republican and Democratic parties, known as the “Gang of

Eight,” wrote the Bill to address the issues in immigration that so clearly divide Congress.114 The Bill suggests both increased border security and granting some form of relief to undocumented immigrants. It slightly modifies the family- and employment-based categories for immigrants in the Immigration and Nationality Act,115 creates a new category of merit-based immigrant visas,116 and more controversially, grants a pathway to citizenship, albeit a long one, to the 11 million undocumented immigrants living in the United States today.117 In the statement of congressional findings, the Senators describe the underlying intent of the Bill: “As a Nation, we have the right and responsibility to make 111 Id. at 2. 112 United States Senate Roll Call Votes 113th Congress – 1st Session, Vote Summary, SENATE.GOV (June 27, 2013), available at http://www.senate.gov/legislative/ LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=113&session=1&vote=00168. 113 Ashley Parker & Jonathan Martin, Senate, 68 to 32, Passes Overhaul for Immigration, N.Y. TIMES (June 27, 2013), http://www.nytimes.com/2013/06/28/us/politics/ immigration-bill-clears-final-hurdle-to-senate-approval.html?smid=pl-share. 114 See generally Rachel Weiner, Immigration’s Gang of 8: Who are they?, WASH. POST (Jan. 28, 2013, 1:00 PM), http://www.washingtonpost.com/blogs/thefix/wp/2013/01/28/immigrations-gang-of-8-who-are-they/; see generally also Parker & Martin, supra note 113. 115 Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. §§ 2305-23 & 4102-05 (2013). 116 Id. §§ 2301-02 (under “Subtitle C – Future Immigration”). 117 Id. §§ 2101-02 (where Chapter 5 of title II of 8 U.S.C. § 1255 et seq. is amended by inserting Section 245B regarding “Adjustment of Status of Eligible Entrants before December 31, 2011, to that of Registered Provisional Immigrant” and where Chapter 5 of title II of 8 U.S.C. § 1255 is amended by inserting section 245C regarding “Adjustment of Status of Registered Provisional Immigrants”); Immigration Reform, Finally, N.Y. TIMES (June 27, 2013), http://www.nytimes.com/2013/06/28/ opinion/immigration-reform-finally.html. 918 BROOKLYN LAW REVIEW [Vol. 79:2 our borders safe, to establish clear and just rules for seeking citizenship, to control the flow of legal immigration, and to eliminate illegal immigration, which in some cases has become a threat to our national security.”118 Title I of the Bill addresses border security enhancements, which serve as “triggers” for other reforms before they are implemented.119 These enhancements include the Comprehensive Southern Border Security Commissions and Southern Border Fencing Strategy, which are executed by creating an additional independent fund to implement the Act.120 The border security strategies act as a trigger to several provisions, including the Registered Provisional Immigrant Program (RPI), which would allow eligible undocumented immigrants to apply if they have been in the United States since December 31, 2011, have no significant criminal record, pay taxes, pass background checks, and pay the application and penalty fee.121 RPI status would permit work authorization and protection from deportation for six years.122 Despite this, RPI status does not grant eligibility for federal public benefits.123 Eventually, an RPI may adjust status to that of a legal permanent resident after he or she gets to the “Back of the Line”: The status of a registered provisional immigrant may not be adjusted to that of an alien lawfully admitted for permanent residence under this section until after the Secretary of State certifies that immigrant visas have become available for all approved petitions for immigrant visas that were filed under sections 201 and 203 before the date of the enactment of the Border Security, Economic Opportunity, and Immigration Modernization Act.124 In addition to RPI status, the Bill also provides for other forms of legalization including a Merits-Based Point System which allows foreigners to obtain lawful permanent residence in the United States based on points relating to their skills, employment history, and education.125 The White House released a statement by President Obama following the Senate’s passage of the bill: “The bipartisan bill that passed today was a compromise. By 118 Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Cong. § 2. 119 Id. § 3. 120 Id. §§ 4-5. 121 Id. § 2101(b). 122 Id. § 2101(d)(1). 123 Id. § 2101(d)(3). 124 Id. § 2102(c)(2). 125 Id. § 2301. 2014] PROSECUTORIAL DISCRETION & IMMIGRATION REFORM 919 definition, nobody got everything they wanted . . . . Today, the Senate did its job. It’s now up to the House to do the same.”126 S.744 currently finds itself mired in congressional stalemate, where the Republican majority in the House of Representatives refuses to address the bill.127 As of September 2013, the House has yet to consider the Senate bill, leaving millions of undocumented immigrants waiting for reform.128 IV. THE VARIOUS BENEFITS OF PROSECUTORIAL DISCRETION Given Congress’ inability to effectuate immigration reform, prosecutorial discretion could be a mechanism to educate and inform our leaders of the benefits of retaining certain groups of undocumented immigrants. The benefits of immigration have been consistently recognized in the immigration reform debate. According to the CATO Institute’s Policy Recommendations for the 108th Congress, “Immigration gives America an economic edge in the global economy . . . . Immigrants are not a drain on government finances . . . . [T]he typical immigrant and his or her offspring will pay a net $80,000 more in taxes during their lifetimes than they collect in government services.”129 Similarly, the Center for Immigration Studies has recognized the correlation between increased education in immigrant populations, higher paying jobs, and increased tax revenue, which all serve as benefits to American society.130 In advocating for the passage of the DREAM Act, supporters cited to the Supreme Court decision in Plyler v. Doe, where the Court held that undocumented immigrant youths are entitled to free public school education from kindergarten through high school.131 The reasoning behind this decision was 126 News Release, Office of the Press Secretary, The White House, Statement by President Obama on Senate Passage of Immigration Reform (June 27, 2013), available at http://www.whitehouse.gov/the-press-office/2013/06/27/statement-presidentobama-senate-passage-immigration-reform-0. 127 Ashley Parker & Jonathan Weisman, Republicans in House Resist Overhaul for Immigration, N.Y. TIMES (July 10, 2013), http://www.nytimes.com/ 2013/07/11/us/politics/gop-in-house-resists-overhaul-for-immigration.html?smid=pl-share. 128 Michael D. Shear & Julia Preston, Immigration Reform Falls to the Back of the Line, N.Y. TIMES (Sept. 8, 2013), http://www.nytimes.com/2013/09/09/us/politics/ immigration-reform-falls-to-the-back-of-the-line.html?smid=pl-share. 129 Cato Institute, The Cato Handbook for Congress: Policy Recommendations for the 108th Congress, (Sept. 1, 2003), available at http://www.cato.org/sites/cato.org/ files/serials/files/cato-handbook-policymakers/2003/9/hb108-63.pdf. 130 Steven A. Camarota, The High Cost of Cheap Labor: Illegal Immigration and the Federal Budget, CTR. IMMIGR. STUDS., 23 (2004), available at http://www.cis.org/ sites/cis.org/files/articles/2004/fiscal.pdf. 131 Plyler v. Doe, 457 U.S. 202, 220 (1982). 920 BROOKLYN LAW REVIEW [Vol. 79:2 that undocumented children had committed no crime, and should not be punished for the crimes of their parents.132 Further, the Court emphasized the need to educate undocumented immigrant children because, “by denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”133 The children of undocumented immigrants will continue to be part of American society. Today’s immigration system should encourage the American government to take the steps necessary for the U.S. to legally accept them.134 Policy statements from top-ranking immigration officials prior to Obama’s DACA program conveyed a similar philosophy. As previously discussed, the Meissner memo on the exercise of prosecutorial discretion discretely weaves into the classic economic concerns of the agency’s enforcement priorities an emphasis on humanitarian concerns. In describing the development of a list of “triggers” to help INS District Directors identify suitable cases for the favorable exercise of prosecutorial discretion, Meissner identifies factors such as “Aliens with lengthy presence in United States (i.e., 10 years or more)” and “Aliens present in the United States since childhood.”135 The memo concludes that these trigger facts are meant to facilitate “identification of potential cases that may be suitable for prosecutorial review as early as possible in the process.”136 Through the early targeting of individuals that should receive a favorable exercise of prosecutorial discretion, the agency spends its resources on the crucial enforcement priorities of criminal aliens while reaffirming that the deportation of certain individuals should be reassessed. Similarly, an October 2005 memorandum by Principal Legal Advisor to ICE, William J. Howard, regarding the necessity of prosecutorial discretion for the agency’s enforcement priorities, combined the concern of prioritizing enforcement with the humanitarian necessity for prosecutorial discretion.137 After 132 Id. 133 Id. at 223. 134 See Annand supra note 10, at 709 (advocating for passage of DREAM act given reality that DREAMers will continue to be part of American society). 135 Meissner Memo, supra note 7, at 11. 136 Id. 137 Memorandum from William J. Howard, Principal Legal Advisor of Immigration and Customs Enforcement, on Prosecutorial Discretion, 4-6 (Oct. 24, 2005), available at http://www.scribd.com/doc/22092975/ICE-Guidance-Memo-ProsecutorialDiscretion-William-J-Howard-10-24-05. 2014] PROSECUTORIAL DISCRETION & IMMIGRATION REFORM 921 detailing the various instances and manners of exercising prosecutorial discretion throughout the lifetime of an immigration case, a discussion that is peppered with considerable humanitarian factors,138

Howard concluded the memorandum by stressing that prosecutorial discretion was a “ very significant tool ” that should be used in “cases involving human suffering and hardship.”139 He added: “our reasoned determination in making

prosecutorial discretion decisions can be a significant benefit to the efficiency and fairness of the removal process.”140 Likewise, in a November 2007 memorandum discussing prosecutorial discretion, written by Assistant Secretary of ICE Julie Myers, compassion and family unity were stressed as important factors in considering whether to take nursing mothers into custody.141 Attached to the Myers memo was the original memorandum on prosecutorial discretion of INS Commissioner Doris Meissner. Finally, the memoranda published by Director of ICE John Morton in 2011 also joined the economic goals of the agency’s enforcement priorities with significant humanitarian factors to determine the exercise of prosecutorial discretion. First, the memorandum of March 2011 set out enforcement priorities by creating specific and distinguishable categories: aliens who pose a threat to national security (priority 1); aliens who recently reentered the United States illegally (priority 2); and aliens who are fugitives (priority 3).142 Given the explicit categories created for enforcement priorities, and the rise in criminal aliens, Morton emphasized that prosecutorial discretion should be soundly exercised, and that “particular care should be given when dealing with lawful permanent residents, juveniles, and the immediate family members of U.S. citizens.”143 Morton’s June 2011 memorandum reemphasized these priorities, building on previous agency memoranda,144 and specifically delineating factors to be considered when issuing a favorable exercise of prosecutorial discretion—factors with an emphasis on humanitarian interests and an implicit acknowledgement of the positive impact of certain individuals on American society.145 These factors include the alien’s length of time in the United States, circumstances of his 138 Id. 139 Id. at 8. 140 Id. (emphasis added). 141 See Myers Memo, supra note 68, at 1. 142 Morton, Civil Immigration Enforcement, supra note 50, at 1-2. 143 Id. at 4. 144 Morton, Exercising Prosecutorial Discretion, supra note 50, at 1. 145 Id. at 4. 922 BROOKLYN LAW REVIEW [Vol. 79:2 or her arrival (particularly if he or she arrived as a young child) and

the person’s pursuit of education in the United States.146 Recognizing the benefits derived from the retention of certain immigrants who have the potential to positively impact American society has resonated throughout the recent political discourse on immigration reform—sometimes even on both sides of the political spectrum. For instance, at the 2012 Republican National Convention, former Secretary of State Condoleezza Rice expressed this same ideology: “We must continue to welcome the world’s most ambitious people to be a part of us. In that way, we stay young and optimistic and determined. We need immigration laws that protect our borders, meet our economic needs, and yet show that we are a compassionate nation of immigrants.”147 Similarly, the New York Times quoted Republican Senator from Florida Marco Rubio saying that legislation for immigration reform “should also recognize that legal immigration has been a boon to the United States in the past and is ‘critical to our future.’”148 Some Democratic leaders have even been arrested in the name of immigration reform.149 It is clear from

the evolution of the above-cited policy memoranda that consideration of the favorable exercise of prosecutorial discretion both addresses the economic necessity of enforcement priorities (given the limited resources of the agencies), and balances humanitarian concerns for fair and compassionate immigration laws. At the same time, use of prosecutorial discretion also provides an opportunity to individually identify and provide relief to those immigrants who contribute positively to the economic and cultural fabric of American society. Secretary Napolitano’s memorandum regarding the use of prosecutorial discretion as a relief tool for certain young immigrants is an extension of the aforementioned policy which has been utilized by the DHS since the Meissner memo. 146 Id. 147 Condoleezza Rice, Former Secretary of State, Address to Republican National Convention (Aug. 29, 2012), transcript available at http://www.foxnews.com/ politics/2012/08/29/transcript-condoleezza-rice-speech-at-rnc/#ixzz2HmLITSNl. 148 Julia Preston, Rubio Pushes His Party on Immigration Changes, N.Y. TIMES (Jan. 14, 2013), http://www.nytimes.com/2013/01/15/us/politics/marco-rubio-pushesrepublican-party-on-immigration-changes.html?hp&_r=0. 149 Julia Preston, 8 Lawmakers Arrested at Immigration Protest, N.Y. TIMES (Oct. 8, 2013), http://www.nytimes.com/2013/10/09/us/8-lawmakers-arrested-at-immigrationprotest.html. 2014]

PROSECUTORIAL DISCRETION & IMMIGRATION REFORM 923 CONCLUSION Despite the best efforts of certain members of Congress to find common ground and pass comprehensive immigration reform, little progress has been made . Eleven million undocumented immigrants continue to live in the shadows, contributing to the growth of the American economy yet are

consistently marginalized and ignored. It is through the mechanism of prosecutorial discretion that comprehensive, efficient, and humanitarian immigration reform can be effectuated. Given the adjudicative nature of the mechanism, the DACA program would have the potential to affect many eligible noncitizens. This may explain why the agency initially failed to offer proper guidelines for the use of deferred action.150 The Morton memos clearly evince a greater care in the transparent use of prosecutorial discretion under the Obama administration. Although

these agency statements have addressed some of the problems that were prevalent with deferred action, the intense opposition to comprehensive immigration reform is worrisome. Over the years, although acknowledging the need for serious reform, Congress has been unable to agree on granting relief to hardworking, though undocumented, members of American society. Yet, the economic and cultural benefits of these productive members of American society have been unequivocally demonstrated.151

Prosecutorial discretion calls for fair humanitarian policies in addition to the need for economic and administrative efficiency. And, given congressional gridlock in immigration reform , the exercise of prosecutorial discretion, of which DACA is an exemplary illustration, has been and can be effectively used as a temporary measure to relieve certain undocumented immigrants from the unfair immigration policies of our time.

Next Off is the Net Benefit – the Base DA

1NC – DAA. Base support is up – Noko & trade

Balz 6/12 (2018, Dan, Washington Post Chief correspondent covering national politics, the presidency and Congress, “Can Trump command political support without real progress on trade and N. Korea?”, WP, https://www.washingtonpost.com/politics/can-trump-command-political-support-without-real-progress-on-trade-and-n-korea/2018/06/12/83f95cc4-6e72-11e8-afd5-778aca903bbe_story.html?noredirect=on&utm_term=.4ea679369b73)President Trump is now embarked on two ambitious foreign policy initiatives — redrawing the rules of international trade and defanging a nuclear-armed North Korea — that represent significant personal gambles. The

question is, can he gain something politically from these efforts in the absence of demonstrable accomplishments? The twin meetings of the past week, beginning with the Group of Seven gathering in Canada and followed immediately by the summit in Singapore with North Korean leader Kim Jong Un, highlighted a president always willing to shake the traditional order in defiance of norms and procedures. This was how he got elected , and it is how he has operated from the start — governing by breaking crockery. The G-7 gathering and the Sing - apore summit taken together highlighted the president’s willingness to go against the grain , to offend his friends when they get under his skin and to butter up his adversaries in a calculated effort to get his way. His petulant reaction to relatively mild criticism from Canadian Prime Minister Justin Trudeau (who said he would stand

up for his country’s interests) and his praise for one of the world’s most brutal leaders produced head-spinning on all fronts. What has been on display over the past five days are hallmarks of the Trumpian style: policy initiatives and processes that trample across political and establishment lines, great swings in rhetoric, promises and threats, anger and flattery. But then what? Trump

is betting that it adds up to more than constant motion, that it is a winning political strategy in the end. It continues to bind him closely to his base . It infuriates his opponents but often keeps them off balance at the same time. On trade, more Democrats than Republicans support his tougher, more confrontational policies, though their general dislike of the president keeps many from expressing it. Establishment

Republicans, generally a bulwark of free-traders, dislike those policies, but few have truly confronted him. Many in Trump’s base see them as part of the president’s promise to put America first , and they applaud the president’s instincts, even in the absence of results. But his reaction to Trudeau’s post-G-7 news conference — Trump withdrew U.S. support for the member nations’ joint statement — generated widespread criticism and condemnation (though most elected Republicans remained silent). Trade adviser Peter Navarro apologized Tuesday for saying on Sunday that there was “a special place in hell” for Trudeau, but the president remained peeved. In Singapore, he again attacked Trudeau and said the prime minister’s comments would cost Canada “a lot of money.” His approach to North Korea may be even more unconventional. Earlier threats of “fire and fury” may have contributed to Kim’s decision to seek a summit, although successful tests of nuclear weapons and ballistic missiles no doubt did as much. But by elevating a ruthless

dictator onto the international stage, Trump handed the North Korean leader a propaganda victory that other presidents were unwilling to grant. Initial reactions to the public scenes and photo-ops from Singapore were cautiously positive, a reflection of the desire to lower temperatures on the Korean Peninsula. But as Tuesday wore on and more people examined a joint communique that was longer on talk of peace and prosperity than on commitments by North Korea to get rid of its weapons, skepticism rose, and judgments of the summit’s value grew harsher.

B. Progressive immigration policy devastates Trump’s base supportAP 1/26/18. (Associated Press. Trump Turns Again on Immigration, Allies Bash ‘Amnesty Don'. January 26, 2018. https://www.snopes.com/2018/01/26/trump-turns-immigration-allies-bash-amnesty-don/)NEW YORK (AP) — Fearing betrayal on a signature campaign issue, President Donald Trump’s loyalists across the country are lashing out against his proposal to create a path to citizenship for nearly 2 million “Dreamer”

immigrants. Trump-aligned candidates from Nevada and Virginia rejected the notion outright. The president’s most loyal media ally, Breitbart News, attacked him as “Amnesty Don.” And outside groups who cheered the hard-line rhetoric that

dominated Trump’s campaign warned of a fierce backlash against the president’s party in November’s

midterm elections . “There’s a real potential for disaster ,” said Mark Krikorian, executive director of the far-right Center for Immigration Studies. “The president hasn’t sold out his voters yet . But I think it’s important that his supporters are making clear to him that they’re keeping an eye on him .” The public

scolding was aimed at a president who has changed course under pressure before. Yet Trump has faced no greater test on a more significant issue than this one , which dominated his outsider candidacy and inspired a coalition of working -class voters that fueled his unlikely rise. Now, barely a year into his presidency, Trump can bend either to the will of his fiery base or the pressure to govern and compromise. His leadership may determine the fate of hundreds of thousands of young immigrants and whether his party can improve its standing among a surging group of Hispanic voters. It may also alienate those who love him most. “There’s a Trump movement. And It’s not necessarily about Donald Trump,” said Corey Stewart, a Republican Senate candidate in Virginia and a vocal Trump ally. “It’s about the things that Donald Trump campaigned and stood for during his campaign.

Ultimately, every elected leader needs to stay true to the message that they ran on, otherwise people will leave them .” The passionate response underscores the Republican Party’s immigration dilemma in the age of Trump.

Much of the country, including independents and moderate Republicans, favor protections for thousands of young people brought to the country as children illegally and raised here through no fault of their own. But a vocal conservative faction emboldened by Trump’s anti-immigrant rhetoric will never accept anything viewed as “amnesty.” And many view legal protection for these young immigrants as just that. Trump’s proposal includes billions for border security and significant changes

to legal immigration long sought by hard-liners. Several Democrats and immigration activists rejected it outright. But his supporters’ focus on

“amnesty” for Dreamers highlights how dug in the base is and how little room Trump has to maneuver. The president told reporters this week that he favored a pathway to citizenship for those immigrants, embracing a notion he once specifically rejected. Legal protection for roughly 700,000 immigrants enrolled in the Deferred Action for Childhood Arrivals program, or DACA, has emerged as the driving priority for Democrats, who forced a government shutdown over this issue last week. The businessman president appears to have set out to cut a deal. “It is concerning why anyone would attempt to repeat history by granting amnesty,” said Mississippi state Sen. Chris McDaniel, who is mulling a primary challenge against Republican Sen. Roger Wicker. McDaniel likened the Trump proposal to the “amnesty” granted in 1986 immigration overhaul backed by President Ronald Reagan. Such a policy, he said, would harm American workers and “invite more illegals,” while emboldening liberals in future debates. Making a deal now would ensure that a future Congress will be “held hostage by open border advocates.” In Virginia, Stewart said “any amnesty, including an extension of DACA,” would lead to a “humanitarian crisis” at the border and could draw millions of new immigrants into the country illegally. “I’m not happy about it,” he said. In Nevada, where Trump loyalty is the centerpiece of Republican Danny Tarkanian’s primary challenge against Sen. Dean Heller, Tarkanian also broke from the president. “It’s his decision,” Tarkanian said of Trump. “But I don’t believe we should grant citizenship to people who have come to the country illegally.” He would, however, support permanent legal status for children who entered

the country illegally, but said he draws the line at citizenship. The consequences could be severe for the GOP as it struggles to energize voters heading into the 2018 midterm elections, when Republican majorities in the House and Senate are at stake. Recent Democratic victories in Alabama and Virginia suggest that the GOP has cause for concern — especially as Trump’s

approval number hover near record lows. Protections for more immigration of these young immigrants could trigger wholesale revolt by Trump’s base in November , said Bob Dane, executive director of the conservative Federation for

American Immigration Reform. “There’s widespread fear that if Trump capitulates to the Democrats and fails to deliver on his campaign promises on immigration, there’s not going to be any more campaign promises for the GOP to make in

the future, because the base will inflict a scorched-earth policy in midterms ,” Dane said, noting that his organization has “a longstanding position of opposing amnesty in any form, including the extension of the DACA protections.”

C. Loss of core support causes Trump to lash out with nuclear weaponsStreet 16. Street, Tim. Senior Programme Officer on the Sustainable Security programme at Oxford Research Group and has worked for many years on the politics of nuclear disarmament and the arms trade. "President Trump: Successor to the Nuclear Throne," http://www.oxfordresearchgroup.org.uk/publications/briefing_papers_and_reports/president_trump_successor_nuclear_throneWith the former, Trump’s recent comment that he now has an ‘open mind’ about the importance of the Paris climate agreement—having previously said climate change is a ‘hoax’—is unlikely to assuage fears that he will seek to dramatically expand the US’s extraction and reliance on fossil fuels. With the latter, strong doubts have been raised over whether the new President is capable of responsibly handling the incredible power that will be at his fingertips. Moreover, several commentators are already raising concerns that a Trump administration will pursue policies that will aggravate and disappoint his supporters , a situation that

could increase the possibility of the US engaging in a ‘diversionary’ war . In order to consider what we can expect from a Trump presidency, as well as noting whom Trump empowers as members of his cabinet and those whom he draws on for advice, it is vital to study the track record of recent administrations and appreciate the powers Trump will inherit. In doing so this briefing focuses on the question of what a Trump presidency might mean for international relations with a focus on nuclear arms, including doctrine and disarmament. This means reviewing policies relevant to the US’s nuclear arsenal and pressing international challenges such as non-proliferation, including in East Asia and the Middle East, as well as the US’s relationship with Russia and its role in NATO. The power and responsibilities of the nuclear monarch The US President is solely responsible for the decision to use the near-unimaginably destructive power of the nation’s nuclear arsenal. Thus, as Bruce Blair—a former intercontinental ballistic missile launch control officer—makes clear, ‘Trump will have the sole authority to launch nuclear weapons whenever he chooses with a single phone call. ’

The wider political meaning of the bomb for the world is aptly summarised by Daniel Deudney, who describes nuclear weapons as ‘intrinsically despotic’ so that they have created ‘nuclear monarchies’ in all nuclear-armed states. Deudney identifies three related reasons for this development: ‘the speed of nuclear use decisions; the concentration of nuclear use decision into the hands of one individual; and the lack of accountability stemming from the inability of affected groups to have their interests represented at the moment of nuclear use’. Similarly, Elaine Scarry has explained in stark terms in her 2014 book Thermonuclear Monarchy: Choosing between Democracy and Doom, how the possession of nuclear weapons has converted the US government into ‘a monarchic form of rule that places all defense in the executive branch of government’ leaving the population ‘incapacitated’. In response to this situation, Scarry argues that the American people must use the Constitution as a tool to dismantle the US nuclear weapons system, thereby revitalising democratic participation and control over decision-making. Scarry also outlines the incredible might the president wields, with each of the US’s fourteen nuclear-armed submarines alone carrying ‘enough power to destroy the people of an entire continent’ , equivalent to ‘eight times the full-blast power expended by Allied and Axis countries in World War II’. Nuclear specialist Hans Kristensen has described how the US’s strategic nuclear war plan ‘if unleashed in its full capacity’ could ‘kill hundreds of millions of people, devastate entire nations, and cause climatic effects on a global scale’. This war plan consists of a ‘family of plans’ that is aimed at ‘six potential adversaries’ whose identities are kept secret. Kristensen understands that they include ‘potentially hostile countries with nuclear, chemical, and biological weapons (WMD)’,

meaning China , North Korea, Iran, Russia and Syria as well as a terrorist group backed by a state that has conducted a catastrophic WMD attack. The ‘dominant mission’ for US nuclear weapons within these plans is termed counterforce, meaning strikes on ‘military, mostly nuclear, targets and the enemy’s leadership’. Despite these plans, the US’s nuclear arsenal is often described by mainstream commentators as being solely intended to ensure mutual assured destruction (MAD), i.e. as part of the ‘balance of terror’ with Russia, in order to prevent armed conflict between the two nations and to ensure a response in kind to a surprise nuclear attack. However, as Joseph Gerson and John

Feffer explain, rather than deterrence just being about enough nuclear forces surviving a surprise first strike attack to ensure MAD, US military planners have also understood it to mean ‘preventing other nations from taking “courses of action” that are inimical to US interests’. David McDonough thus describes the ‘long-standing goal of American nuclear war-planners’ as being the achievement of the ability to launch a disarming first-strike against an opponent- otherwise known as nuclear superiority. This has been magnified in recent years as the US seeks to ‘prevent’ or ‘rollback’ the ability of weaker states—both nuclear and non-nuclear powers—to establish or maintain a deterrence relationship. Taking all this into account, the new commander-in-chief’s apparently volatile temperament thus raises deep concerns since his finger will be on the nuclear trigger as soon as he assumes office on 20th January 2017. Given his past experience, Bruce Blair’s statement that he is ‘scared to death’ by the idea of a Trump presidency is but one further reason why urgent discussion and action, both in the US and globally, on lessening nuclear dangers—and reviving disarmament—is vital. A recent report by the Ploughshares Fund on how the US can reduce its nuclear spending, reform its nuclear posture and restrain its nuclear war plans should thus be required reading in Washington. However, as the Economist has rightly noted, ‘It is not Mr Trump’s fault that the system, in which the vulnerable land-based missile force is kept on hair-trigger alert, is widely held to be inherently dangerous’ since, as they point out, ‘no former president, including Barack Obama, has done anything to change it.’ Over sixty years after the nuclear attacks on Hiroshima and Nagasaki, nuclearism thus remains very much embedded in the nation’s strategic thinking. Yet the election of Obama, and the rhetoric of his 2009 Prague speech, in which he stated ‘America's commitment to seek the peace and security of a world without nuclear weapons’ led many to think that a real change was on the cards. Obama’s visit to Hiroshima earlier this year to commemorate the bombings was thus a painful reminder of how wide the gap is between the rearmament programmes that the US and other nuclear weapon states are engaged in and the disarmament action that they are legally obliged to pursue under the nuclear non-proliferation treaty (NPT). Obama himself said in Japan that, ‘technological progress without an equivalent progress in human institutions can doom us. The scientific revolution that led to the splitting of an atom requires a moral revolution as well.’ For this statement to be meaningful it is necessary to identify who is responsible for the existing, highly dangerous state of affairs. In short, the US government’s recent record supports Scarry’s suggestion that a democratic revolution is what, in reality, is most needed if the US is to make substantial progress on nuclear non-proliferation and disarmament. Short-term reforms towards the democratic control and ultimate dismantlement of the US’s nuclear arsenal have been outlined by Kennette Benedict, who writes that the next administration should: place our nuclear weapons on a much lower level of launch readiness, release to the public more information about the nuclear weapons in our own arsenals, include legislators and outside experts in its nuclear posture review and recognize Congress’ authority to declare war as a prerequisite to any use of nuclear weapons. Assessing Obama’s nuclear legacy In order to properly appreciate what a Trump presidency may bring, we need to revisit the range and types of powers bequeathed to the commander-in-chief by previous administrations. Despite the military advances made by China and Russia in recent years, it is important to recognise that the US remains far and away the biggest global spender on conventional and nuclear weapons and plans to consolidate this position by maintaining significant technological superiority over its adversaries, which will, as is well appreciated, push Beijing, Moscow—and thus other regional powers—to respond. Yet spending on nuclear weapons alone is set to pose significant budgeting difficulties for future US governments. According to a 2014 report by the James Martin Center, the Departments of Defense and Energy plan to spend approximately $1 trillion over the next 30 years ‘to maintain its current nuclear arsenal and procure a new generation of nuclear-armed or nuclear capable bombers and submarines’ as well as new submarine launched ballistic missiles (SLBMs) and inter-continental ballistic missiles (ICBMs). Arms Control Today has found that total Defense Department nuclear spending ‘is projected to average more than $40 billion in constant fiscal year 2016 dollars between 2025 and 2035, when modernization costs are expected to peak’. Including costs for the Department of Energy’s National Nuclear Security Administration’s projected weapons-related spending during this period ‘would push average spending during this period to more than $50 billion per year’. If anywhere near these sums are spent, then the modest reductions to the US’s nuclear stockpile achieved during the Obama presidency will be entirely overshadowed. Moreover, as analyst Andrew Lichterman notes, the US’s continued modernisation of its nuclear forces is ‘inherently incompatible’ with the ‘unequivocal undertaking’ given at the 2000 NPT Review Conference to eliminate its nuclear arsenal and apply the ‘principle of irreversibility’ to this and related actions. For Lichterman, the huge outlays committed to the nuclear weapons complex were part of a political ‘bargain’ made by the Obama administration with Republicans. This ensured that the New START nuclear arms control treaty would pass in the Senate whilst also not disturbing the development of missile defense and other advanced conventional weapons programmes. New START is a bilateral agreement between Russia and the US, which Steven Pifer describes as ‘one of the few bright spots’ that exists in these nations’ relationship. Under the treaty Moscow and Washington must, by 2018, reduce their stockpile of operationally deployed strategic nuclear warheads to 1,550. Furthermore, both must keep to a limit of 700 deployed strategic launchers (missiles) and heavy bombers, and to a combined limit of 800 deployed and non-deployed strategic launchers and heavy bombers. Despite New START ‘proceeding smoothly’ according to Pifer, Hans Kristensen recently produced a report comparing Obama’s record with that of the previous presidents holding office during the nuclear age, which found that, hitherto, Obama has cut fewer warheads—in terms of numbers rather than percentages—than ‘any administration ever’ and that ‘the biggest nuclear disarmers’ in recent decades have been Republicans, not Democrats. Kristensen thus drily observes of this situation that, a conservative Congress does not complain when Republican presidents reduce the stockpile, only when Democratic president try to do so. As a result of the opposition, the United States is now stuck with a larger and more expensive nuclear arsenal than had Congress agreed to significant reductions. As his presidency draws to a close, presumably as a means of securing some sort of meaningful legacy in this area, it has been reported that Obama considered adopting a no first use (NFU) policy for nuclear weapons, something which, whilst reversible, could act as a restraint on future presidents. Yet this was apparently abandoned, according to the New York Times, after ‘top national security advisers argued that it could undermine allies and embolden Russia and China’. Furthermore, according to Josh Rogin of the Washington Post, the governments of Japan, South Korea, France and Britain all privately communicated their concerns about Washington adopting NFU. Defense Secretary Ashton Carter is also said to have argued that such a move would be unwise because ‘if North Korea used biological weapons against the South the United States might need the option of threatening a nuclear response’. However, as Daryll Kimball explains, the US’s ‘overwhelming’ conventional military advantage means that ‘there is no plausible circumstance that could justify—legally, morally, or militarily—the use of nuclear weapons to deal with a non-nuclear threat’. Such resistance to NFU is thus deeply disappointing given that, as Kimball goes on to note, this move would go some way to reassuring China and Russia about the US’s strategic intentions. It would also be an important confidence-building measure for the wider community of non-nuclear weapon states, showing that the US is willing to act in 'good faith' towards its disarmament obligations under the NPT. Thinking about the causes of proliferation more widely requires us to understand what drives weaker states to seek deterrents, if their reliance on them is to be reduced. For example, as Dr Alan J. Kuperman observes, NATO’s bombing and overthrow of Libyan leader Muammar Gaddafi in 2011 ‘greatly complicated the task of persuading other states such as Iran and North Korea ‘to halt or reverse their nuclear programs’. The lesson Tehran and Pyongyang took is thus that because Gaddafi had voluntarily ended his nuclear and chemical weapons programmes, the West now felt free to pursue regime change. When assessing the importance of the Iran nuclear deal, which is often hailed as one of Obama’s landmark achievements, and which the next President must not be allowed to derail, it is thus important also to consider carefully what behaviour by the most powerful states will enable existing or potential nuclear possessors to embrace disarmament and reduce their interest in seeking non-conventional deterrents. The inability of Washington to make substantial progress towards reducing the salience of nuclear weapons at home and abroad is all the more noteworthy when one considers the state of US and Russian public opinion on nuclear arms control and disarmament. As John Steinbrunner and Nancy Gallagher observe, ‘responses to detailed questions reveal a striking disparity between what U.S. and Russian

leaders are doing and what their publics desire’. For example, their polling found that: At the most fundamental level, the vast majority of Americans and Russians think that nuclear weapons have a very limited role in current security circumstances and believe that their only legitimate purpose is to deter nuclear attack. It is highly consistent, then, that the publics in both countries would favor eliminating all nuclear weapons if this action could be taken under effective international verification. Another important measure which the US has failed to hitherto ratify is the Comprehensive Test Ban Treaty (CTBT). This is despite President Obama stating in 2009 that he intended to pursue Senate ratification of the treaty ‘immediately and aggressively’. Once more, there is notably strong public support–82% according to a 2010 poll by the Chicago Council on Global Affairs—for the US joining the CTBT but, again, the Republican-controlled Senate has blocked the treaty at every opportunity. Overall, the gap between the public’s will and the government’s inaction on nuclear issues is alarming and redolent of the wider democratic deficit in the US. On a more positive note, the fact that the citizenry supports such measures suggests that groups advocating arms control and disarmament initiatives should continue to engage with and understand the public’s positions in order to effectively harness their support. Stepping back from the brink In terms of priorities for the incoming administration in the US, stepping back from military confrontation with Russia and pushing the threat of nuclear war to the margins must be at the top of the list. Whilst much has been made of a potential rapprochement between Trump and Putin , the two have, reportedly, only just spoken for the first time on the phone and still need to actually meet in person to discuss strategic issues and deal with inevitable international events and crises, including in relation to Ukraine and Syria. As of now, whilst the mood music from both sides might suggest a warming of relations, as has been seen with previous administrations, unless cooperation is rooted in a real willingness to resolve

problems (which for Russia includes US ballistic missile defense deployments in Eastern Europe and NATO expansion) then tensions can quickly re-emerge . Another related question concerns how Trump will conduct himself during any potential crisis or conflict with Russia or another major power, given the stakes and risks involved, as highlighted above. Whilst we must wait to find out precisely what the new administration’s approach to international affairs will be, in the past week, NATO’s Secretary General Jens Stoltenberg told the BBC that he had been personally informed by Donald Trump, following the election, that the US remains ‘strongly committed to NATO, and that the security guarantees to Europe stand’. Trump had previously shaken sections of the defence and foreign policy establishment by suggesting that NATO was ‘obsolete’ and that countries such as Japan (and by extension others such as South Korea and Saudi Arabia) ‘have to pay us or we have to let them protect themselves’, which could include them acquiring the bomb. One reason why some in Washington have, in the past, not wanted their regional allies to develop their own nuclear weapons is because the US might then become dragged into an escalating conflict. Moreover, if an ally in one region seeks the bomb, this may cause others elsewhere to pursue their own capabilities- an act of strategic independence that might make these states harder to influence and control. The US’s key relationships in East Asia and the Middle East illustrate why, if a future US President wishes to take meaningful moves towards a world free of nuclear weapons, then developing alternative regional political agreements, including strategic cooperation with China and Russia, will be necessary. As Nancy Gallagher rightly notes, the ‘weaknesses of existing international organizations’ thus requires ‘more inclusive, cooperative security institutions’ to be constructed regionally ‘to complement and someday, perhaps, to replace exclusive military alliances’, alongside progressive demilitarisation. Such confidence-building measures would also support efforts to halt missile and nuclear tests by states such as North Korea, which may soon be capable of striking the US mainland. Imagining the next enemy As well as mapping out the US’s current

nuclear weapons policies and its regional relationships, it is important to reflect upon how domestic political dynamics under a Trump presidency might drive Washington’s behaviour internationally , particularly given the nuclear shadow that always hangs over conflicts involving the US. For example, in the near-term, Trump’s economic plan and the great expectations amongst the American working class that have been generated, may have particularly dangerous consequences if, as seems likely, the primary beneficiaries are the very wealthy. Reviewing Trump’s economic plans, Martin Wolf of the Financial Times concludes that ‘the longer-term consequences are likely to be grim, not least for his angry, but fooled, supporters. Next time, they might be even angrier. Where that might lead is terrifying’. Gillian Tett has also highlighted the ‘real risks’ that Trump’s policies could ‘spark US social unrest or geopolitical uncertainty’. Elsewhere, George Monbiot in the Guardian, makes the stark assertion that the inability of the US and other governments to respond effectively to public anger means he now believes that ‘we will see war between the major powers within my lifetime’.

If these warnings weren’t troubling enough, no less a figure than Henry Kissinger argued on BBC’s Newsnight that ‘the more likely reaction’ to a Trump presidency from terror groups ‘will be to do something that evokes a reaction’ from Washington in order to ‘widen the split’ between it and Europe and damage the US’s image around the world. Given that Trump has already vowed to ‘bomb the shit out of ISIS’ and refused to rule out the use of nuclear weapons against the group, it goes without saying that such a scenario could have the gravest consequences and must be avoided so that the US does not play into the terrorists’ hands. Looking more widely, President-elect Trump’s existing and potential cabinet appointments, which Glenn Greenwald has summarised as ‘empowering…by and large…the traditional, hard, hawkish right-wing members of the Republican Party’ also point to the US engaging in future overseas conflicts, rather than the isolationism which many in the foreign policy establishment criticised Trump for proposing during the presidential campaign. William Hartung and Todd Harrison have drawn attention to the fact that defence spending under Trump could be almost $1trillion (spread over ten years) more than Obama’s most recent budget request. Such projections, alongside Trump’s election rhetoric, suggest that the new nuclear monarch will try to push wide open the door to more spending on nuclear weapons and missile defense, a situation made possible, as we have seen, by Obama’s inability to implement progressive change in this area at a time of persistent Republican obstruction. Conclusion The problem now, for the US and the world, is that if Trump does make good on his campaign promises then this will have several damaging consequences for international peace and security and

that if Trump does not sufficiently satisfy his supporters then this will likely pour fuel on the flames at home, which may then quickly spread abroad . The people of the US and the world thus now have a huge responsibility to act as a restraining influence and ensure that the US retains an accountable, transparent and democratic government. This responsibility will only grow if crises or shocks take place in or outside the US which ambitious and extremist figures take

advantage of, framing them as threats to national security in order to protect their interests and power. If such scenarios emerge the next administration and its untried and untested President will find themselves with a range of extremely powerful tools and institutional experience at their disposal, including nuclear weapons , which may prove too tempting to resist when figuring out how to respond to widespread anger , confusion and unrest, both at home and abroad .

Next Off is the Balkanization DA

A: Uniqueness - President Trump is striving to increase restrictions on immigration.

Hauslohner and Tran ’18 (Abigail, Andrew, “Trump is making inroads in reducing legal immigration”, http://www.chicagotribune.com/news/nationworld/ct-legal-migration-steep-decrease-20180702-story.html)

As the national immigration debate swirls around the effort to discourage illegal immigration by separating families at the border, the Trump administration is making inroads into another longtime priority: reducing legal immigration. The number of people receiving visas to move permanently to the United States is on pace to drop 12 percent in President Donald Trump's first two years in office, according to a Washington Post analysis of State

Department data…. Trump has said he wants additional limits on immigration in part because he believes new arrivals create undue competition for American workers.

B: Link - Immigration increasing leads to further balkanization.Qiu ’18 (Linda, “Border Crossings Have Been Declining for Years, Despite Claims of a ‘Crisis of Illegal Immigration’”,

https://www.nytimes.com/2018/06/20/us/politics/fact-check-trump-border-crossings-declining-.html) Nowrasteh ’16 (Alex, “Balkanization and Immigration in America”, https://www.cato.org/blog/balkanization-immigration-america)

IT CERTAINLY looked like a “Trump effect.” Within weeks of Donald Trump’s arrival at the White House in January 2017, the number of people caught crossing America’s southern border illegally fell to a 17-year low of 11,127. John Kelly, then secretary of the Department of Homeland Security (DHS), attributed the drop to Mr Trump’s executive orders on immigration. Elaine Duke, the department’s deputy secretary, gave credit to better enforcement of immigration laws. Mr Trump hailed it as “a historic and unprecedented achievement”. If such an effect did exist, it appears to have

been short-lived. On April 5th, the DHS announced that Border Patrol agents apprehended 37,393 people in March, an increase of more than 200% on the previous year. The number of unaccompanied children caught entering illegally jumped by 300%, and the number of families detained while attempting the journey surged by nearly 700%. Permanently reducing such flows will require more than Mr Trump’s tough talk. The president’s vow to end what he calls “catch and release”—the practice of apprehending undocumented immigrants, and then releasing them while their court cases are being resolved—will be particularly difficult to implement. The DHS currently has the capacity to detain a maximum of 39,000 immigrants facing deportation; Mr Trump wants that figure raised to 48,000. Under a decades-old federal court ruling, immigration authorities can detain unaccompanied children for only 20 days before releasing them to family members or other sponsors living in the country. By law asylum-seekers with a “credible fear” of returning home must be released if they do not present a security risk. Despite these constraints, Mr Trump appears determined to proceed with his immigration crackdown. On April 4th he announced plans to deploy 2,000 to 4,000 National Guard troops to the Mexican border to support federal law enforcement. He has continued to tout his achievements. “We’re toughening up at the border” he told a crowd in West Virginia on April 5th. “We’re throwing them out by the hundreds.” Mr Trump may be disappointed to learn that the DHS deported 226,000

individuals in 2017, 14,000 fewer than the previous year. One common critique of immigration and multiculturalism is it will cause Balkanization in the United States.

C: Internal Link - Balkanization has already began, further immigration will worsen thisWoodridge ’18 (Frosty Woodridge, “Immigration Altering The Political DNA Of America”, https://theroperreportsite.wordpress.com/2017/04/15/the-balkanization-of-the-u-s-has-begun/)

In 2017, powerful interests push for blanket amnesty of 12 million and as high as 20 million illegal aliens. The journalist Ann Coulter, in her book Adios America,

counted 31 million illegal aliens residing within America by researching U.S. Census Bureau records. Since 1965, via legal immigration, birth rates and chain-migrated relatives, the United States added 100,000,000 (million) people from 196 countries around the world. If that trend continues on the same path, America expects to add 100,000,000 (million) more people from around the world by 2050. Not mentioned by politicians, those 100 million people from 196 different countries represent 190 different

worldviews, religions, language and cultures. America faces a complete altering of its political and cultural DNA toward millions of immigrants pulling in their own directions, rather than for the American way of life. Foremost among incompatible immigrants, Muslims number 3.3 million today within the United States, but they expect to reach as high as 20 million or more by 2050 at current immigration rates, birth rates and chain migration. A recent Fox News survey recorded that 51 percent of Muslim-Americans demand Sharia Law. As their numbers grow, so does their power to vote Sharia Law into their communities. They create parallel societies within our country, but in defiance of our country. “Islam isn’t in America to be equal to any faith, but to become dominant. The Qur’an should be the highest authority in America, and Islam the only accepted religion on Earth.” Omar Ahmed, director of Council on American Islamic Relations. If Congress allows an illegal alien worker amnesty, America shall suffer 20 million illegal aliens becoming U.S. citizens. That will change the DNA of America to resemble Mexico’s failed society. It will become our first step down toward becoming a Third World country. Mexicans will be able to ‘chain migrate’ entire villages into our country from the poorest, most uneducated peasants that can be exported to

America. They do not speak, act nor are they invested as American citizens. They represent the beachhead of an invading army of foreigners colonizing America. They’re commandeering our school systems across America. Sharon Barrett of Fort Collins, Colorado said, “We left California

because you can’t drive safely without danger of being hit by a Mexican. Our kids couldn’t learn anything in school because of so much language chaos and functional illiteracy. We were vulnerable to home break-ins seven days a week. They steal everything that’s not tied down. They’re bringing the lawlessness from Mexico into the United States. We had to get out.” Samuel Huntington, author of Clash of Civilizations, said, “It is my hypothesis that the fundamental source of conflict in this new world will not be primarily ideological or primarily economic. The great divisions among humankind and the dominating source of conflict will be cultural. Nation-states will remain the most powerful actors in world affairs, but the principal conflicts of global politics will occur between nations and groups of different civilizations. The clash of civilizations will dominate global politics. The fault lines between civilizations will be the battle lines of the future.” What it means if the senate passes a mass amnesty—our country morphs into something other than the United States of America. It will become a ‘Fractured Colony of Mexico…or a Caliphate of the Middle East.” English cannot survive endless immigration. We will no longer remain a lawful sovereign nation. We will most certainly suffer the loss of law and order. Our citizenship will be degraded to the level of foreign people with no identification with our country. For example, Los Angeles Mayor Eric Garcetti, an American politician works for Mexican interests and sanctuary city immunity for illegal aliens. The same continues in Chicago, Detroit, New York City and Denver. Do we want our country to turn into another third world? How about another China like what happened to Vancouver, British Columbia in Canada? Any American excited about the prospects of another Paris, France here in the USA? How about another Sydney, Australia? Or, will we keep degrading ourselves into slum conditions like Bombay, India? How about immigrating ourselves toward a billion people so we can catch up to China’s insane population of 1.35 billion? How many of us want America turned into 100 different languages and still pretend it’s America? Anyone thrilled about more gridlock auto congestion in our cities? How about more acid rain, air pollution and water shortages by adding millions of immigrants? How about higher prices for everything until we’re all reduced to the lower class? “Immigrants devoted to their own cultures and religions are not influenced by the secular politically correct façade that dominates academia, news-media, entertainment, education, religious and political thinking today,” said James Walsh,

former Associate General Counsel of the United States Immigration and Naturalization Service. “They claim the right not to assimilate, and the day is coming when the question will be how can the United States regulate the defiantly unassimilated cultures, religions and mores of foreign lands? Such immigrants say their traditions trump the U.S. legal system. Balkanization of the United States has begun.”

D: Impact - Balkanization is a leading cause of division of countries, even striking violenceBriney ’18 (Amanda, “What is Balkanization?” https://www.thoughtco.com/what-is-balkanization-1435451)

In the 1950s and 1960s, balkanization began occurring outside of the Balkans and Europe when several British and French colonial empires

began fragmenting and breaking up in Africa. Balkanization was at its height in the early 1990s however when the Soviet Union collapsed and the former Yugoslavia disintegrated. With the collapse of the Soviet Union, the countries of Russia, Georgia, Ukraine, Moldova, Belarus, Armenia, Azerbaijan, Kazakhstan,

Uzbekistan, Turkmenistan, the Kyrgyz Republic, Tajikistan, Estonia, Latvia, and Lithuania (and many others) were created. In the creation of

some of these countries, there was often extreme violence and hostility. For example, Armenia and Azerbaijan do experience periodic war over their borders and ethnic enclaves. In addition to violence in some, all of these newly created countries have experienced difficult periods of transition in their governments, economies, and societies. Yugoslavia was created out of a combination of over 20 different ethnic groups at the end of World War I. As a result of differences between these groups, there were friction and violence in the country. Following World War II, Yugoslavia began to gain more stability but by 1980 the different factions within the country began fighting for more independence. In the early 1990s, Yugoslavia finally disintegrated after around 250,000 people were killed by war. The countries eventually created out of the former Yugoslavia were Serbia, Montenegro, Kosovo, Slovenia, Macedonia, Croatia and Bosnia and Herzegovina. Kosovo did not declare its independence until 2008 and it is still not recognized as fully independent by the entire world. The collapse of the Soviet Union and the disintegration of the former Yugoslavia are some of the most successful but also the most violent attempts at balkanization that have taken

place. There have also been attempts to balkanize in Kashmir, Nigeria, Sri Lanka, Kurdistan, and Iraq. In each of these areas, there are cultural and/or ethnic differences that have caused different factions to want to break away from the main country. In Kashmir, Muslims in Jammu and Kashmir are trying to break away from India, while in Sri Lanka the Tamil Tigers (a separatist organization for the Tamil people) want to break away from that country. People in the southeastern part of Nigeria declared themselves to be the state of Biafra and in Iraq, Sunni and Shiite Muslims fight to break away from Iraq. In addition, Kurdish people in Turkey, Iraq, and Iran have fought to create the State of Kurdistan. Kurdistan is currently not an independent state but it is rather a region with a mostly Kurdish population…In these instances, it describes potential divisions based political, economic and social differences. Some political commentators in the United States, for example, claim that balkanized or fragmented because it is special interests with elections in specific areas than with governing the entire country (West, 2012). Because of these differences, there have also been some discussions and separatist movements at the national and local levels.

Next to On-Case-Plan - Procedural

Read 1 – Not Both

1. Plan Does Not Specify 2. First Our Interpretation: implementation specification is crucial to affirmative

solvency; they don’t specify so this turns the case.

Janda, Berry, and Goldman 1999 NorthwesternThe Challenge of Democracy Sixth Edition, 1999 p. 434

The development of Policy in Washington is the end of one phase of the policy-making cycle and the beginning of another. After policies have been developed, they must be implemented. Implementation is the process of putting specifics into operation. Ultimately, bureaucrats must convert policies on paper into action. It is important to study implementation, because policies do not always do what they are designed to do. Implementation may be difficult because the details of the policy meant to be carried out have not been clearly stated.

3. Violation: The Affirmative has neglected to specify how the plan will be implemented. 4. As a Standard – This makes the Aff a Moving Target – By not specifying the

implementation the affirmative becomes a moving target because they can change and edit the way their plan is implemented due to neg attacks.

5. This makes this argument specifically a voter and turns solvency – Without specifying implementation then the affirmative cannot prove that the plan can or will be able to achieve its objectives

1. Plan Over Specifies 2. Our Interpretation: The affirmative must defend all 3 branches of the United States

Federal Government. We have definitional support – ‘the’ is a mass noun.American Heritage Dictionary 2000

3. The Violation: The affirmative specifies an agent. 4. Reasons to Prefer our argument is because of ground – specifying allows them to

choose tiny, unpredictable agents that we won’t be prepared to debate and they can strategically change. This allows them to spike out of generic da’s and cp’s because they aren’t even using the federal government anymore.

5. And this argument is a voter for fairness and competitive equity.

Next to Advantage 1Read 1 Card against their advantage 1 – should be able to find this in the case negative file

Next to Advantage 2Read 1 Card against their advantage 2 – should be able to find this in the case negative file

Next to SolvencyRead 1 Card against their solvency – should be able to find this in the case negative file

2NC

My partner and I will be splitting the negative block

I will be taking the Auctions CP, Wages DA, and Case. My partner will take the Effects T, Restrictions T and the Balkanization DA.

First Off is the Counter Plan

Answer the Aff arguments against the CP first1. They said _______, but this is wrong because of ________2. They said _______, but this is wrong because of ________3. They said _______, but this is wrong because of ________

Extend our Plan Text

1. Extend the CP plan text from the 1NC – The affirmative never addresses directly the plan text of the CP – This means they agree with our plan text and the solvency deficit it creates for the affirmative.

2. (Only read if they make an argument regarding hurting small businesses) For clarification purposes - The number of visas issued should initially stay within existing caps but in the subsequent quarter should be adjusted up or down depending upon the auction price. If the allocation of permits disproportionately favors large companies, the United States federal government would set aside an adequate number of permits on which for small companies to bid.

Extend Our Solvency

A. Prosecutorial discretion protects immigrants from removalWadhia 10 – Shoba S. Wadhia, Samuel Weiss Faculty Scholar, Clinical Professor of Law at Penn State, Director for the Center for Immigrants’ Rights Clinic, 2010 (“The Role of Prosecutorial Discretion in Immigration Law,” Penn State Law Journal, 2010, Available Online at https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1016&context=fac_works, Accessed 7/24/18, nhs, IY)Prosecutorial discretion is an awesome power that affects the fate of more noncitizens than any other government action. As defined by the the former Immigration and Naturalization Service (INS) in 2000, "[p]rosecutorial discretion is the authority that every law enforcement agency has to decide whether to exercise its enforcement powers against someone."' Prosecutorial discretion is applied at both a categorical and an individual level.4 Beneficiaries of prosecutorial discretion avoid removal and in some cases are eligible to apply for work authorization. One of the most common forms of prosecutorial discretion is "deferred action" and is discussed in greater detail below. Neither the immigration statute nor the regulations contain eligibility criteria for seeking a favorable grant of prosecutorial discretion. Similarly, unlike most formal applications for discretionary forms of relief from removal, acts of prosecutorial discretion have no written application form . Prosecutorial discretion can be exercised in a wide array of situations.

B. Prosecutorial discretion is goodBednar 17 — Nicholas Bednar, J.D., University of Minnesota Law School; B.A., University of Minnesota 1-19-2017 ("DACA on the Docket by Nicholas Bednar," Minnesota Law Review De Novo, 1-19-2017, Available Online from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2903563, Accessed on 7-10-2018, MWM)The I mmigration & N ationality A ct , agency memoranda, and court decisions recognize the importance of prosecutorial discretion in the immigration system. [24] In a 2000 memorandum, then-INS Commissioner Doris Meissner urged immigration officials to exercise prosecutorial discretion in a “judicious manner.” [25]

Meissner detailed the cost -related arguments in favor of prosecutorial discretion: “Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations . . . . the Service must make decisions about how best to expend its resources.” [26] Meissner and the INS have been replaced by the immigration agencies within the Department of

Homeland Security, but her commentary on prosecutorial discretion is just as relevant today as it was

sixteen years ago. Donald Trump has discussed increasing deportations above their already record- - high levels . An increase in deportations will put additional strain on the dockets of U.S. immigration courts. As with every administration before it, the new administration will have to use prosecutorial discretion as a tool to organize its enforcement priorities. Despite rhetoric to the contrary, Donald Trump’s own policies support retaining DACA as a form of prosecutorial discretion . With respect to immigration enforcement, Donald Trump has emphasized quick deportation of new entrants and immigrants who violate criminal laws. [27] With respect to awarding immigration benefits, Donald Trump has explained the importance of selecting “immigrants based on their likelihood of success in the U.S. and their ability to be financially self-sufficient.” [28] DACA applicants have not committed serious crimes in the United States and have already demonstrated

themselves capable of living, working, and succeeding in the United States. DACA recipients are likely candidates for

prosecutorial discretion in immigration proceedings with or without the formal DACA program. Ending DACA for new applicants would be unfortunate; placing the 844,931 DACA recipients in removal proceedings would be an administrative nightmare. The U.S. immigration system cannot afford to double its case backlog. Wait times would increase both for individuals who have valid forms of immigration relief (e.g. asylum applicants) and those immigrants deemed dangerous or undesirable by the incoming administration (e.g. criminals).

Criminals will stay in this country longer; asylum applicants will wait longer to be afforded the relief they are entitled to. The U.S. immigration system needs DACA , especially if the new administration intends to increase deportation . Unless Congress or the new administration agrees to provide continued deferral for DACA recipients , the U.S. immigration courts will struggle beneath the weight of the backlog and enforcement policies of the new administration will be stifled.

Next Off is the Net Benefit – our Wages DA

Answer the Aff arguments against the Wages DA first

1. They said _______, they are wrong because _________2. They said_______, they are wrong because _________3. They said_______, they are wrong because _________

The aff causes the base to leaveFabian & Easley 17 (9/18, Jordan & Jonathon, The Hill authors, “Trump bets base will stick with him on immigration”, The Hill, http://thehill.com/homenews/administration/350947-trump-bets-base-will-stick-with-him-on-immigration) But if Trump does go back on key campaign promises, it could present a different kind of challenge for him. As a candidate, Trump energized his supporters with his pledges to scrap DACA, deport the

roughly 11 million immigrants living illegally in the U.S. and build a wall along the southern border to stop them from entering. Immigration , in short, was

perhaps the biggest animating force of his candidacy . King tweeted that if reports of the president’s dealings are correct, “Trump base is blown up,

destroyed, irreparable, and disillusioned beyond repair. No promise is credible.” But the president expressed confidence Republicans would stick with him even if he helps DACA recipients, telling reporters Thursday many are “very, very happy with what we’re doing.” The former campaign adviser endorsed Trump’s view, saying his support is “not tied to a specific policy, it’s tied to disrupting, it’s tied to shaking up the status quo.” “That’s what the base likes, bringing disruption to a city that has been mired in gridlock,” the aide said. On Friday, Trump tacitly acknowledged his newfound love for bipartisanship carries political risk. The president rallied supporters with a string of tough-talking early morning tweets on the terror attack at London subway station and an ESPN host who called him a white supremacist. He also reassured his backers that “CHAIN MIGRATION cannot be allowed to be part of any legislation on Immigration!” The term refers to the practice of immigrants with legal status sponsoring certain family members so that they can come to the U.S. Yet some of Trump’s allies continue to question why he seems to be prioritizing a top issue for Democrats, the status of immigrants in the U.S. illegally, over his campaign promise to build a border wall. By not demanding wall funding be attached to a DACA bill, Trump supporters say he is giving away his most valuable bargaining chip in exchange for vague promises of stronger border security from

Schumer and Pelosi. Trump once bragged that his supporters are so loyal , he could shoot someone in the street and he would not lose support. Dan Stein, president of the Federation for American Immigration Reform, said Trump’s proposed DACA deal would put that notion to the test . “Donald Trump would have be en better off going onto Fifth Avenue and shooting someone ,” said Stein, whose group favors lower levels of both legal and illegal immigration. “ He said his base wouldn’t care if he did that. The base cares about this .” Stein speculated the president might be “convinced that

dealing on DACA will win him new supporters” who could help him win in 2020. The former campaign aide said Trump’s supporters wouldn’t have a better option in 2020, regardless of what he does on immigration. “It’s not 2016 Trump against 2020 Trump,” the aide said. “It’s Trump running against [Sens.] Elizabeth Warren or Bernie Sanders, and it’s not like these voters would run to vote for the other side.” In the short term, conservatives' anger at Senate Majority Leader Mitch McConnell (R-Ky.) and Speaker Paul Ryan (R-Wis.) has provided a buffer for Trump against the backlash from his base. Frustration with the GOP leaders gave Trump room to break with them and strike an agreement with Democrats on a deal to extend the nation’s borrowing limit and fund the government. That dynamic could persist until Republicans begin notching legislative victories of their own. “He has such a diverse coalition and his base elected him knowing that he isn’t overly ideological,” said a GOP consultant who requested anonymity. “Poll after poll

shows that Republicans will blame Ryan and McConnell every single time, so he has leeway here.” But the consultant warned that cover might not last forever, because “it’s never a good sign to have key influencers turn their backs.” Key figures on the right warn that

immigration is a different animal from other policy areas. Trump’s tough talk on the issue was a major reason why the right rallied

behind him in 2016 over GOP establishment figures like former Florida Gov. Jeb Bush (R) and Sen. Marco Rubio (R-Fla.). “ He succeeded in the primary because of immigration ,” Stein said. “He would not have won the primary if he had taken a stance on DACA amnesty, [Sen.] Ted Cruz would have won. The base simply will not accept this .”

Increasing legal immigration reverses his whole political theme and shatters his baseBaker 17 (8/2, Peter, NY Times Chief White House Correspondent, “Trump Supports Plan to Cut Legal Immigration by Half”, NY Times, https://www.nytimes.com/2017/08/02/us/politics/trump-immigration.html) President Trump embraced a proposal on Wednesday to slash legal immigration to the United States in half within a decade by sharply

curtailing the ability of American citizens and legal residents to bring family members into the country. The plan would enact the most far-reaching changes to the system of legal immigration

in decades and represents the president’s latest effort to stem the flow of newcomers to the United States . Since taking office, he has barred many visitors from select Muslim-majority countries, limited the influx of refugees, increased immigration arrests and pressed to build a wall along the southern border. In asking Congress to curb legal immigration , Mr. Trump intensified a debate about national identity, economic growth, worker fairness and American values that animated his campaign last year. Critics said the proposal would undercut the fundamental vision of the United States as a haven for the poor and huddled masses, while the president and his allies said the country had taken in too many low-skilled immigrants for too long to the detriment of American workers. “This legislation will not only restore our competitive edge in the 21st century, but it will restore the sacred bonds of trust between America and its citizens,”

Mr. Trump said at a White House event alongside two Republican senators sponsoring the bill. “This legislation demonstrates our compassion for struggling

American families who deserve an immigration system that puts their needs first and that puts America first .” In throwing his weight behind a bill, Mr. Trump added one more long-odds priority to a legislative agenda already packed with them in the wake of the defeat of legislation to repeal and replace President Barack Obama’s

health care program. The president has already vowed to overhaul the tax code and rebuild the nation’s roads, airports and other infrastructure. But by endorsing legal immigration cuts , a move he has long supported , Mr. Trump returned to a theme that has defined his short political career and excites his conservative base at a time when his poll numbers continue to sink. Just 33 percent of Americans approved of his performance in the latest Quinnipiac University survey, the lowest rating of his presidency, and

Prosecutorial discretion is invisible and unreviewable — it avoids backlash.Kamin 16 – Sam Kamin, Ph.D from UC Berkeley and Law Professor at Sturm College of Law, 2016 (“Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle,” Ohio State Journal of Criminal Law, November 22nd, Available Online at http://moritzlaw.osu.edu/students/groups/osjcl/files/2016/12/06-Kamin.pdf, Accessed 7/10/18, nhs, IY)

To the extent that marijuana and immigration policy are mentioned together on the national stage, it is usually in the context of pointing out that, despite the relaxation or elimination of many states’ marijuana prohibitions, marijuana possession and manufacture can still be grounds for the deportation of migrants otherwise in the country lawfully. However, these two seemingly disparate policy arenas share one other important thing in common: in the enforcement of both federal marijuana law and immigration policy, the Obama administration has quite publicly promulgated a policy of limited and selective enforcement of federal law.1 Unable or unwilling to change federal policy in these areas through legislation, the Obama administration has, controversially, sought to use its enforcement discretion to achieve its preferred policy outcomes. Marijuana and immigration , then, serve as important tests of the permissible power of the executive to set federal policy through the selective enforcement of the law as written rather than through legislative enactment. It is a truism, of course, that few governmental decisions are as unreviewable as the authority of a prosecutor to decline to prosecute a particular case.2 In a world of limited resources and widespread criminal conduct, 3 it is generally understood that the exercise of prosecutorial discretion is an essential part of enforcing the law—determining when a violation can be proven to a jury beyond a reasonable doubt and, perhaps more importantly, whether doing so is worth the candle, are exactly the kinds of judgment we generally entrust to prosecutors in the United States. Moreover, while the decision to actually prosecute a particular case is subject to veto by trial judges, juries, and appellate courts, the decision not to prosecute is almost always invisible and unreviewable .4 Thus, if we think of the Obama administration’s policies of selective enforcement as just a species of prosecutorial discretion, they should be relatively uncontroversial . Every prosecutor , every day , exercises similar discretion in the administration of her office.

Now to our Impact Cal: (weigh the impact of this DA against the impacts of the aff)

1. Probability - 2. Time Frame - 3. Magnitude -

Next to Case

On the Plan Text - ProceduralRead one of the procedurals from the 1NC on the plan text only if your partner was

unable to get to it.

On Advantage 1:Make analytical arguments against advantage 1 here.Read 3 Cards against their advantage 1 – should be able to find this in the case negative file

On Advantage 2:Make analytical arguments against advantage 2 here.Read 3 Cards against their advantage 2 – should be able to find this in the case negative file

On Solvency:Use the remainder of your time to read as many cards against solvency as possible. Should be able to find this in the case negative file

1NR

My partner and I will be splitting the negative block

I will be taking the Effects T, Restrictions T and the Balkanization DA.

First Off if Effects T

1. Answer the arguments the affirmative said on the interpretation. (If affirmative never addressed Effects T say – “At the moment the affirmative drops topicality, you must sign your ballot for the negative – Topicality is an A-priority issue. Vote negative.”)

2. Extend our Interpretation that’s the Public Law 87-253 card that states reduction is a net decrease not offset by expansion .

3. Answer the arguments the affirmative said on the violation. 4. Extend our Violation: the plan does not directly decrease restrictions on legal

immigration.5. Answer the arguments the affirmative said on the violation. 6. Extend our standards of Limits, Aff burden and Vacuum Test. –Plan has been proven

non-topical because the plan is effects T thus the plan is untopical and must be voted against.

7. Extend our voters of A Priori, Fairness, and Education

Next off is the Restrictions T

1. Answer the arguments the affirmative said on the interpretation. (If affirmative never addressed Restrictions T say – “At the moment the affirmative drops topicality, you must sign your ballot for the negative – Topicality is an A-priority issue. Vote negative.”)

2. Extend our Interpretation - Restrictions means a (plural) collection of restrictions – that’s our Wordhippo 19 card – which states it means “a collection of restrictions – a plural form of restriction. ”

3. Answer the arguments the affirmative made on our violation. 4. Extend our violation - The affirmative team is not reducing a collection of

restrictions, only reducing one or none5. Answer the arguments the affirmative made on our violation. 6. Extend our standards of Bright Line and Grammatical Context – we must draw a clear

distinction between what is topical and what is not.

7. Extend our voters of Debatability ansd Jurisdiction

Next Off is the Balkanization DA

Answer the Aff arguments against the Balkanization DA first

1. They said _______, they are wrong because _________2. They said_______, they are wrong because _________3. They said_______, they are wrong because _________

Extend our 1NC evidence of the Balkanization DA that was never adequately answered by the affirmative. Please extend our Hauslohner and Tran ’18, Qui 18, Woodridge ’18, Briney ’18 evidence. This DA is saying that the affirmative plan will cause Balkanization in the United States. America is currently facing a complete altering of its political and cultural DNA toward millions of immigrants pulling things in their own directions, rather than promoting the American way of life. As a result of the affirmative plan, the division of America is imminent which will cause extreme violence and hostility

Latino and African American conflicts are proof of small scale balkanization, leading to go onto a larger scale. Immigrant minority groups, particularly between hispanic and african-americans sparks balknaization and conflict among the two. Boyle Heights

shows. Mather, ‘17 https://www.latimes.com/local/lanow/la-me-ln-ramona-hate-crime-20160707-snap-story.html

Seven Latino immigrants have been charged with firebombing the homes of black families living in a Boyle Heights

housing project, an attack that federal prosecutors allege was designed to drive African Americans out of the

neighborhood. A federal indictment unsealed Thursday describes how the the suspects allegedly planned and

carried out the May 12, 2014, attack, which came at time when black families were increasingly moving

back into the Ramona Gardens public housing complex after previous violence that prompted most African

Americans to flee.

Prosecutors allege that the men broke the apartment windows before hurling Molotov cocktails inside – a move designed

to "maximize damage" – and struck homes where families, including children, were inside. Three of the four

apartments were occupied by black families.

Balkanization resulted in New York due to large influxes of Irish and Italian immigrants.Moses 15 https://www.newsday.com/opinion/oped/a-migration-marred-by-tension-rivalry-1.10580274

The Irish and Italian immigrants to New York had much in common despite differences in language and

custom. They were people of the periphery who suffered from poverty and exploitive governance. They shared a religion in Catholicism, and work experience

that consisted mostly of the heavy lifting needed for farm labor. Yet they clashed in New York. Construction sites, parish

churches, union halls, the police station, the waterfront: All became arenas for Irish-Italian conflict in

the late 19th century and well into the 20th century.

When the Italians arrived in large numbers in New York starting around 1880, the Irish were established. A sign of

that success was the election of William R. Grace as the city's first Irish-Catholic mayor in 1880. But many of the Irish remained

impoverished and tempers flared when Italians competed for jobs as laborers, willing to work longer days for less

money. The workers' fights became so common that the Brooklyn Eagle editorialized, "Can't they be

separated?" With that rivalry in the background, even the church became an arena for conflict. Rather than try to unify the

congregations, Irish-American pastors found it better to make the Italians worship in the church basement,

stirring resentment and even some pointed words from the Vatican.

Prosecutors allege that the men broke the apartment windows before hurling Molotov cocktails inside – a move designed

to "maximize damage" – and struck homes where families, including children, were inside. Three of the four

apartments were occupied by black families.

Balkanization kills disaster infrastructure- magnifies natural disastersToor ’13 (Toor joined The Verge in April 2012. He has also worked as a consultant at the OECD in Paris and at Miramax in Santa Monica. **Cites Sascha Meinrath, the director of the New America Foundation’s Open Technology Institute, and Allan Friedman, the Director of Cybersecurity Initiatives at National Telecommunications and Information Administration in the US Department of Commerce. “Will the global NSA backlash break the internet?” http://www.theverge.com/2013/11/8/5080554/nsa-backlash-brazil-germany-raises-fears-of-internet-balkanization)

"The network experience is key," says Leslie Daigle, chief technology officer at the Internet Society. "Increased Balkanization is typically correlated with less diversity of offerings, less diversity of support infrastructure, and fewer interconnects with other parts of the [internet]." Such interconnectedness, she adds, has proven particularly valuable in times of crisis. "When we've seen natural disasters hit countries, it's diversity of infrastructure that has meant those countries were not entirely wiped off the internet map , " Daigle says in an email to The Verge. "When there was an earthquake and tsunami in Japan, there was network damage but that meant slower connections, not complete lack of connection."

The biggest thing is to answer the affirmative arguments – extend evidence already read and provide an impact calculus.

Next to Impact Calculus - (Explain how the impacts of this Disadvantage outweigh the affirmative’s disadvantages) Prefer the negative impacts of the Balkinzation DA to the negative impacts. Our impacts outweigh the affirmative’s on: Probability – (explain in your own words), Time-Frame – (explain in your own words), Magnitude – (explain in your own words).

2NR

Note – Go for whatever you’re winning – But, typically here – you should go for

Prosecutorial Discretion CP, Base DA and then two major on-case category like

Advantages or Solvency. Just make sure you tell the judge how you’re winning and

what arguments you’re winning. You shouldn’t be reading a lot of evidence

here. Just going back over and summarizing the arguments you’re

winning.

Ext Effects T – If going for Effects T - Make sure you are extending the interpretation – violation – standards – voters and explain how you’re winning in your own words.

Ext Restrictions T – If going for Restrictions T - Make sure you are extending the interpretation – violation – standards – voters and explain how you’re winning in your own words.

Ext Counter PlanThe biggest thing to consider here is to answer the affirmative arguments and to extend arguments already made. Please extend the CP by saying in your own words how the CP captures the affirmative advantages before.

Discretion Key — Funding Discretion key to specific enforcement of deportation laws – no fundsWadhia ’18 (Shoba S. Wadhia, Clinical Professor of Law, Director of Center for Immigrants' Rights Clinic at UPenn and expert on immigration law whose research focuses on the role of prosecutorial discretion in immigration law and the intersections of race, national security and immigration, author of “Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases,” Roger Williams University Law Review, Vol. 23 : Iss.2 , Article 4, spring 2018, 7/10/18, https://docs.rwu.edu/rwu_LR/vol23/iss2/4)ssk

First, prosecutorial discretion exists for economic reasons: DHS has the funds to deport less than four percent of the roughly 11.2 million unauthorized immigrants living in the United States, roughly four-hundred thousand individuals, so choices have to be made by the agency about who to target for removal and who to place on the backburner.7 This is similar to the way prosecutorial discretion operates in the criminal system—prosecutors

do not bring charges against every person who fishes without a license, for example, because there are limited prosecutorial resources . 8 Second, prosecutorial discretion also has a humanitarian dimension: it allows law enforcement to consider a person’s equities when deciding whether to bring action against them. In the immigration context, DHS may choose to exercise discretion in cases involving those who have lived in the United States for many years or who bear other compelling factors.9 Inevitably, the pool of people who bear these factors rises with each year that Congress fails to enact a legislative solution to our outdated immigration system.

Congressional inaction is a third reason we have prosecutorial discretion: greater demands are placed on the Exec utive Branch when Congress fails to act .10

Trump KeyThe president is key to prosecutorial discretion over immigration – it’s the most humane optionWadhia et al. 17 – Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Clinical Professor of Law at Penn State, Director for the Center for Immigrants’ Rights Clinic, for full list of authors and qualifications: https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/LawProfLetterDACAFinal8.13.pdf, 2017 (“a letter to President Donald Trump,” Penn State Law, August 14th, Available Online at https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/LawProfLetterDACAFinal8.13.pdf, Accessed 7/10/2018, nhs, IY)

Dear President Trump: As immigration law teachers and scholars , we write to express our position that the executive branch has legal authority to implement Deferred Action for Childhood Arrivals (DACA 2012). This letter provides legal

analysis about DACA 2012. In our view, there is no question that DACA 2012 is a lawful exercise of prosecutorial discretion . Our conclusions are based on years of experience in the field and a close study of the U.S. Constitution, administrative law, immigration statutes, federal regulations and case law. As the administration determines the future of DACA 2012, understanding its legal foundation and history is

critical. DACA 2012 was announced by the President, and implemented in a memorandum by the Secretary of Homeland Security, on June

15, 2012.1 It enables qualifying individuals to request a temporary reprieve from removal known as “deferred action.” Deferred action is one form of prosecutorial discretion in immigration law and has been used for decades by the Department of Homeland Security (DHS) (and formerly the Immigration and Naturalization Service (INS))

and over several administrations.2 Whether a requesting individual receives deferred action under DACA 2012 is at the discretion of DHS. Qualifying individuals may request DACA 2012 if they came to the United States before the age of sixteen; are currently in school or have graduated; have continuously resided in the United States since June 15, 2007; have not been convicted of a felony, “significant misdemeanor,” or three or more non-significant misdemeanors; do not otherwise pose a threat to public safety or national security; and otherwise warrant protection as a matter of discretion. 3 Individuals who are granted DACA 2012 receive a two-year period in deferred action

and also gain eligibility to apply for employment authorization. The legal authority for DACA 2012 originates from the U.S.

Constitution. Article II, Section Three (the Take Care Clause) states in part that the President “shall take Care that the Laws be faithfully executed.” 4 Inherent in the function of the “Take Care Clause” is the ability of the President to target some immigration cases for removal and to use prosecutorial discretion favorably in others . As described by the U.S. Supreme Court: [W]e recognize that an agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to “take Care that the Laws be faithfully executed.”5 As early as 1976, former INS General Counsel Sam Bernsen executed a legal opinion that identified the Take Care Clause as the primary source for prosecutorial discretion in immigration matters. He wrote: “ The ultimate source for the exercise of prosecutorial discretion in the Federal Government is the power of the President. Under Article II, Section 1 of the Constitution, the executive power is

vested in the President. Article II, Section 3, states that the President ‘shall take care that the laws be faithfully executed.’” 6 The U.S. Supreme Court has also recognized the role of prosecutorial discretion in the immigration system. In Arizona v United States, the Court noted that “[a] principal feature of the removal system is the broad discretion exercised by immigration officials . . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all . . . .” 7 Congress created the Immigration and Nationality Act (the Act or INA) in 1952 and it remains the primary statutory authority for immigration law today.8 Importantly, Congress has delegated most discretionary immigration functions to DHS. Section 103 of the Act provides that “[t]he Secretary of Homeland Security shall be charged with the administration and enforcement of this Act and all other laws

relating to the immigration and naturalization of aliens . . . .” 9 Congress has repeatedly acknowledged that the Executive has power to grant “deferred action” for certain categories of people such as victims of

crimes and human trafficking.10 Additionally, previous administrations have announced deferred action programs to protect qualifying individuals. For example, under the George W. Bush administration, U.S. Citizenship and Immigration Services (part of DHS) announced a deferred action program for students affected by Hurricane Katrina11 and later developed a program for the widows of U.S.

citizens.12 Moreover, Congress also recognized legal authority for immigration prosecutorial discretion in INA § 242(g), which bars judicial review of three specific prosecutorial discretion decisions by the agency: to commence removal proceedings, to adjudicate cases, and to execute removal orders.13 Another important legal source for deferred action is Title 8 of the Code of Federal Regulations. Section 274a.12(c)(14) dates to 1981 and is the product of notice and comment rulemaking.14 This regulation specifically identifies deferred action by name and allows individuals granted deferred action to apply for work authorization upon a showing of “economic necessity.”15 Over the last two decades, thousands of individuals have applied for and received work authorization based on a deferred action grant.16 There are also agency guidance documents related to deferred action issued by DHS (and formerly INS) over the last four-plus decades. The 1976 legal opinion by former INS General Counsel Sam Bernsen cites to the Take Care Clause of the U.S. Constitution, as well as statutory and case law from as early as 1825 to affirm the exercise of prosecutorial discretion in immigration.17 It was around this time when INS published its first guidance on deferred action in the form of an “Operations Instruction.” This “Operations Instruction” stated “(ii) Deferred action. In every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for deferred action category.”18 Since 1975, deferred action has been identified in several subsequent guidance documents.19 Guidance documents are common in administrative law and are a recognized form of agency action under the Administrative Procedure Act.20 At tension with the aforementioned body of law is a letter sent by ten state Attorneys General to the administration requesting that DACA 2012 be rescinded.21 This letter refers to DACA 2012 as “unlawful” and does so without citing to the foundational legal authorities behind deferred action. Furthermore, the letter conflates deferred action, “lawful presence” and work authorization in ways that are legally unsound and unclear. Finally, the letter itself shoehorns arguments into Texas v. United States, a lawsuit that never included the core of DACA 2012, and instead involved policies that are at this point in time moot.22 Moreover, a previous lawsuit challenging DACA 2012 failed on jurisdictional

grounds and would inevitably inform any future challenge.23 While the scope of this letter is to describe the legal foundation for DACA 2012, it is important to highlight the history and inevitability of prosecutorial discretion in immigration enforcement. Prosecutorial discretion exists because the government has limited resources and lacks the ability to enforce the law against the entire undocumented population. Recognizing this resource limitation, Congress has charged the Secretary of DHS with “establishing national immigration enforcement policies and priorities.”24 Prosecutorial discretion and policies like DACA 2012 also have a humanitarian dimension, and such factors have long driven deferred action decisions. Finally, DACA 2012 has been an unqualified policy success, allowing over threequarters of a million recipients to continue their education, receive professional

licensing, find employment, and pay taxes into Social Security and other tax coffers. 25 This letter outlines the legal foundation for DACA 2012 and confirms that maintaining such a policy falls squarely within the Executive’s discretion. The legal authority for the Executive Branch to operate DACA 2012 is crystal clear. As such, choices about its future would constitute a policy and political decision, not a legal one. As the

administration decides how best to address DACA 2012, we hope that the legal foundation and history for this policy is addressed wisely

and that decisions on the future of DACA 2012 are made humanely.

Discretion defers to Trump and bars judicial review Luís L. Lozada ‘17 (J.D. candidate at Cornell Law School where he is a Cornell International Law Journal Associate. He holds a Bachelor’s Degrees from UCLA, “The Rescission of DACA: Prosecutorial Discretion and Due Process,” Cornell International Law Journal Online, October 14 th, 2017, accessed 7/24/18, http://cornellilj.org/the-rescission-of-daca-prosecutorial-discretion-and-due-process/#_edn1) ssk

Specifically, this legal authority originates from the Constitution in Article II, Section Three, which states that the President “shall take Care that the Laws be faithfully executed.”[ 28] Inherent in the function of the “ Take Care Clause ” is the ability of the President to target some immigration cases for removal and use prosecutorial discretion in others .[29] The S upreme C ourt has recognized the role of prosecutorial discretion in the immigration system ,[30] where Congress has delegated most discretionary

functions to DHS.[31] As such, Congress has acknowledged that the executive branch has the power to grant “deferred action” concerning certain categories of people such as victims of crime and human trafficking.[32] Not to mention, there are limited resources allocated to find and deport every undocumented individual in the country, instead the President can direct agencies to focus on serious crimes and wanted felons. This deference to the executive branch is apparent under the Immigration and Nationality Act , Section 242 (g) that bars judicial review of three specific prosecutorial discretion decisions by the agency : commence removal proceedings, adjudicate cases, and executive removal orders.

Homeland Security KeyAuthority defers to Homeland Security on immigration prioritiesFrancisco et al ’18 (NOEL J. FRANCISCO Solicitor General Counsel of Record CHAD A. READLER Acting Assistant Attorney General JEFFREY B. WALL Deputy Solicitor General HASHIM M. MOOPPAN Deputy Assistant Attorney General JONATHAN Y. ELLIS Assistant to the Solicitor General MARK B. STERN ABBY C. WRIGHT THOMAS PULHAM Attorneys, “PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT” Department of Justice, 1/19/18, 7/24/18, https://www.justice.gov/sites/default/files/briefs/2018/01/19/171003_dept_of_homeland_sec._v._regents_of_univ._of_cal._pet.pdf)ssk

The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., charges the Secretary of Homeland Security “with the administration and enforcement” of the Act. 8 U.S.C. 1103(a)(1). Individual aliens are subject to removal if, inter alia, “they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by

federal law.” Arizona v. United States, 567 U.S. 387, 396 (2012); see 8 U.S.C. 1182(a) (2012 & Supp. IV 2016); see also 8 U.S.C. 1227(a). As a practical matter, however, the fed eral gov ernment cannot remove every removable alien , and a “principal feature of the removal system is the broad discretion exercised by immigration officials. ”

Arizona, 567 U.S. at 396. For any alien subject to removal, Department of Homeland Security ( DHS) officials must first “ decide whether it makes sense to pursue removal at all.” Arizona, 567 U.S. at 396. After removal proceedings begin, government officials may decide to grant discretionary relief, such as asylum, parole, or cancellation of removal. See 8 U.S.C. 1158(b)(1)(A), 1182(d)(5)(A), 1229b. And, “[a]t each stage” of the process, “the Executive has discretion to abandon the endeavor.” Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 483

(1999) (AADC). In making these decisions, like other agencies exercising enforcement discretion, DHS must engage in “a complicated balancing of a number of factors which are peculiarly within its expertise.” Heckler v. Chaney,

470 U.S. 821, 831 (1985). Recognizing the need for such balancing, Congress has provided that the “ Secretary [ of H omeland S ecurity] shall be responsible for * * * [ e]stablishing national immigration enforcement policies and priorities. ” 6 U.S.C. 202(5).

A2: Status Quo Solves/Not a ChangeICE will no longer exercise prosecutorial discretion for undocumented immigrantsDolven 17 – Taylor Dolven, B.A. in Journalism from Miami University, Journalist for VICE Media, 2017 (“ICE is aggressively prosecuting immigrants it used to let go,” VICE News, 8/11/17, Available Online at https://news.vice.com/en_ca/article/d3xkga/ice-is-aggressively-prosecuting-immigrants-it-used-to-let-go, Accessed 7/18/18, nhs, IY)

For years, prosecutors for I mmigration and C ustoms E nforcement had the discretion to drop cases against low-risk or otherwise law-abiding undocumented immigrants . The process, known as “prosecutorial discretion,” gave a second chance to those with a path to citizenship like a marriage petition or a visa application, and allowed ICE lawyers to focus on violent criminals . Not anymore . Those second chances have all but disappeared during the past six months of the Trump administration, according to ICE data obtained by VICE News. At the same time, ICE has ramped up immigration arrests of non-criminals who were considered low-priority under the Obama administration. “ Now everybody is a target,” said Amy Fisher, policy director for RAICES , an immigrant advocacy group. “Before, there was at least a system in place that we could use to fight back. That system has become increasingly ineffective.” Department of Homeland Security data analyzed by the Transactional Records Access Clearinghouse at Syracuse University shows that “ prosecutorial discretion,” once used in thousands of cases a month, has dwindled to a few dozen. The number of cases closed by ICE lawyers’ request plummeted from 2,425 in January of this year to 199 in February, and further to 34 in June. That means more than 2,000 immigrants who would normally have had their cases closed are now stuck in removal proceedings. Arrests of non-criminals have increased during the same time period, up from 1,730 in January to 4,176 in June, according to ICE statistics. A spokesman for ICE told VICE News the department still reviews all cases for prosecutorial discretion but no longer exercises it, even in cases where an immigrant’s only crime is breaking immigration laws. “ ICE will no longer exempt classes or categories of removable aliens from potential enforcement , ” said ICE spokesman Matthew Bourke in an email. “All of those in violation of the immigration laws may be subject to immigration arrest, detention, and, if found removable by final order, removal from the United States.” The policy shift happened with a memo from ex-Secretary of Homeland Security and new White House Chief of Staff John Kelly in February. It essentially abolished prosecutorial discretion for previously low-priority immigrants and the priority system. “Now all the cases are a priority , which makes things tough,” said Camila Valenzuela, a Boston immigration attorney. “Before, there was a tiered system with priorities, and you could ask for discretion based on that.” The new policy, a stark shift from the Obama administration, has led to greater media attention around aggressive ICE tactics as immigrants once considered low-priority are prosecuted for deportation. A woman in Boston was arrested at her interview with Citizenship and Immigration Services, part of pursuing her green card application with her U.S. citizen spouse. A Cincinnati man was arrested in the hallway right after his marriage petition interview. A Sacramento man was arrested at an immigration check-in. A Denver man was arrested by ICE at the local courthouse when he showed up to resolve a misdemeanor traffic violation. A woman in El Paso was arrested in the courthouse hallway after she attended a hearing to get a restraining order against her abusive partner. A DACA recipient in Seattle was arrested during a home raid. ICE officers were looking for his father but arrested him in the process. A high school soccer player with a college scholarship was arrested when he showed up to a Maryland ICE office for a check-in with immigration officials. A Los Angeles father was arrested after he dropped one of his

daughters off at school. His other daughter filmed the arrest from the back seat. A father in Connecticut was arrested when he went to a local ICE office to sign some papers for his undocumented son. “What we’re seeing now is the enforcement is based on a budget from Congress to remove about 400,000 people, and that’s what we’re going to do, however it happens,” said Leon Fresco, a former Deputy Assistant Attorney General for the Office of Immigration Litigation. “Everyone is at risk for removal .” While the shift in policy has been stark under Trump, it is not too dissimilar to the early years of the Obama administration when ICE took a tougher line toward otherwise law-abiding immigrants. “From 2009 to 2011 it was the same kind of enforcement we’re seeing now,” Fresco said. More people were deported from 2009 to 2011 than during the eight years before Obama took office, according to ICE statistics.

Here’s 8 government actions that prove immigrants are being deportedChishti and Bolter 17 — Muzaffar Chishti is a lawyer that focuses on U.S. immigration policy at the federal, state, and local levels; the intersection of labor and immigration law; immigration enforcement; civil liberties; and immigrant integration. and Jessica Bolter is a Research Assistant at MPI, where she provides research support to the U.S. Immigration Policy Program, 2017. (“The Trump Administration at Six Months: A Sea Change in Immigration Enforcement,” Migration Policy Institute, 7-19-17, Available Online at https://www.migrationpolicy.org/article/trump-administration-six-months-sea-change-immigration-enforcement, Accessed 7-18-18, KM)

Congress has geared up as well. The House passed two bills that would further expand interior immigration enforcement : Kate’s Law and the No Sanctuary for Criminals Act. Kate’s Law, which stalled in Congress in 2015, would increase penalties for unauthorized immigrants with certain criminal convictions who return to the United States after previously being deported. The No Sanctuary for Criminals Act would, among other measures, bar states or localities from prohibiting employee cooperation with federal immigration authorities and would make jurisdictions ineligible for certain federal law enforcement grants if they enact such prohibitions. Currently, states and localities are restricted only from prohibiting communication about an individual’s immigration status with ICE. These bills, which Trump and senior DHS officials have championed, would increase the population of detained immigrants and the population of removable noncitizens to which ICE has access. Brushing Up Against Resource Limitations? While promising to prioritize enforcement against criminals and threats to public safety, the Trump administration has ramped up arrests of non-criminals and made clear it intends to cast a far wider net regarding those considered a priority for removal. However, the administration may soon have to confront the reality of resource limitations. While the administration is seeking billions of dollars for new immigration enforcement personnel, detention facilities, and the construction of a border wall, it remains to be seen if Congress will acquiesce. Without a new infusion of resources, the Trump administration is unlikely to be able to arrest, detain, and deport significantly larger numbers of unauthorized immigrants than during the peak Obama years, and in the end will be left with a choice between prioritizing those with criminal convictions versus a much larger population of those without.

Executive Order 13768: Enhancing Public Safety in the Interior of the United States

Homeland Security Implementation Memo: Enforcement of the Immigration Laws to Serve the National Interest

Press availability by ICE Acting Director Thomas Homan and others regarding interior enforcement

2014 Homeland Security Memo establishing Obama administration interior enforcement priorities

Tahirih Justice Center survey on immigrant domestic violence survivors

Kate’s Law

No Sanctuary for Criminals Act

National Policy Beat In Brief

ICE is eliminated prosecutorial discretion over immigration casesAmerican Immigration Council 18 — The American Immigration Council is a Washington, D.C.-based 501 nonprofit organization and advocacy group, 2018 (“The End of Immigration Enforcement Priorities Under the Trump Administration”, American Immigration Council, 3-07-18, Available Online at https://www.americanimmigrationcouncil.org/research/immigration-enforcement-priorities-under-trump-administration , Accessed 7-13-2018, KM)

Enforcement of U.S. immigration laws has historically been guided by policies that emphasize prioritization. However, this practice has largely been abandoned since the inauguration of President Donald Trump. This fact sheet explains the shift in enforcement philosophy under the Trump administration and outlines the effects of this change. The get-tough approach to enforcement—portrayed by the administration as an attempt to “restore the rule of law”—in effect diverts the attention of law-enforcement agencies from those who have committed serious

crimes and those who are serious public threats. Enforcement Without Priorities. Whereas prior policies outlined a framework for prioritizing U.S. resources—such as emphasizing the removal of persons convicted of serious crimes—the Trump administration expanded “enforcement priorities” so broadly as to render the term meaningless. As U.S. Immigration and Customs Enforcement (ICE) stated in a year-end report, ICE no longer exempts groups of removable [noncitizens] from enforcement. In other words , all undocumented immigrants have become targets —even if they have lived in the United States for many years, have U.S.-born children, and have never had a run-in with law enforcement. The Trump administration laid out its enforcement priorities in the

executive order, “Enhancing Public Safety in the Interior of the United States,” signed on January 25, 2017. The order defines as a priority any non-U.S. citizen who: has been convicted of any criminal offense; has been charged with any criminal offense, where the charge has not been resolved; has committed acts that constitute a chargeable criminal offense; has engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency; has abused any program related to the receipt of public benefits; is subject to a final order of removal, but has not departed; or otherwise poses, in the judgment of an immigration officer, a risk to public safety or national security. The subsequent Department of Homeland Security ( DHS ) memorandum implementing this executive order severely curtailed the ability of immigration-enforcement personnel to assess an individual’s equities when making case decisions. In the words of the memo: “prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of [noncitizens] from enforcement of the immigration laws.” Put differently, all DHS personnel “shall faithfully execute the immigration laws of the United States against all removable [individuals].” A Look at the Numbers This shift in enforcement philosophy has translated to more arrests and deportations of noncitizens. The increase is apparent in ICE statistics.

Between January 25, 2017, and the end of fiscal year (FY) 2017 (September 30, 2017 ), ICE made 110,568 arrests—a 42 percent increase over the 77,806 arrests made during the same period in 2016 .

More detailed ICE statistics require a closer look. Specifically, ICE grouped together those convicted of crimes and those only charged with crimes when totaling arrests made between January 25 and September 30, 2017. As a result, ICE reported that 92 percent of arrests during that period were of individuals who either had criminal convictions or criminal charges pending final disposition. In addition to the problematic accounting that results from combining convictions and charges, the term “criminal” is defined very broadly. For instance, the largest numbers of convictions or charges pending were for non-violent crimes—traffic offenses, immigration offenses (such as unlawful entry or reentry into the country), and drug offenses (including possession). In addition, roughly 1 in 10 individuals arrested during FY 2017 had neither criminal convictions nor criminal charges pending. Exercising Discretion: 1996 to 2017 One of the crucial mechanisms in the enforcement of U.S. immigration law and criminal law is the exercise of discretion—and not just prosecutorial discretion. At the broadest level, discretion refers to the decision by a law-enforcement officer, prosecutor, or some other government official to pursue (or not pursue) the enforcement of certain laws against a person, or group of people, who may have violated those laws. Discretion comes into play at every juncture of the law-enforcement process. In the criminal justice system, police decide whether to arrest someone; prosecutors decide if they should bring charges against that person; and judges decide what punishment to hand down to an individual who has been convicted. Discretion is critical to ensuring the criminal justice system functions properly. This is due in large part to the limited availability of resources. There simply aren’t enough police, prosecutors, and other criminal-justice personnel to act against every person who may have violated any one of the hundreds of thousands of laws on the books, no matter how minor. Given this limitation, the most rational use of law-enforcement resources is to prioritize more serious offenses over relatively minor ones. Other factors also enter into the equation when deciding whether to exercise discretion, such as how strong the evidence is against the accused, whether the accused has a prior criminal history, and how cooperative the accused is in assisting authorities with other investigations or prosecutions. For the most part, the discretionary considerations applicable in criminal law also apply in immigration law.

Although immigration laws are civil in nature, the stakes remain high since penalties for violations can be extremely harsh —including long-term or lifetime banishment from the United States. Federal prosecutors commonly threaten criminal charges to get an immigrant to agree to voluntarily depart and avoid being placed in deportation

proceedings. In fact, deportation often occurs even if criminal charges are dropped. Also pursuant to the same guidance, DHS rescinded most documents that previously offered guidance on the exercise of prosecutorial discretion in immigration, including, but not limited to, the 2014 Johnson Priorities Memo (named after the former DHS Secretary Jeh Johnson).25 The Johnson Priorities memo was important because it provided a framework for determining who is a priority for immigration enforcement and articulated the factors that should be considered when making decisions about whether to deport someone.26 For example, the now rescinded Johnson Memo instructed DHS to consider the amount of time spent living in the United States and “compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.”27 Left unknown is the status of earlier guidance documents on prosecutorial discretion in immigration. For example, a guidance document published by former Immigration and Customs Enforcement (ICE) head, John Morton, established a prosecutorial discretion policy for witnesses, victims and plaintiffs to crimes.28 The policy stated in part: “Absent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.”29 Similarly, former Immigration and Naturalization Service (INS) Commissioner, Doris Meissner, issued a comprehensive policy on prosecutorial discretion in 2000, which required officers to exercise discretion judiciously at every stage of the enforcement process.30 As of this writing, the Trump administration has not indicated whether the Victims Memo, Meissner Memo or other earlier documents on prosecutorial discretion are still in effect. In a separate memorandum dated June 15, 2017, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) was formally rescinded by the former Secretary of Homeland Security, now White House Chief of Staff, John Kelly.31 While DAPA was never operational because of litigation that blocked the program,32 the message that rescission of the program sends to affected parents, the majority of whom have lived in the United States for more than a decade, is that they are unwelcome at best and are priorities for removal at worst. DAPA would have protected an estimated 4 million parents.33 By contrast, about 500,000 undocumented parents were deported between 2009 and 2013.34

A2: Illegal Executive discretion isn’t illegal in the enforcement of deportation lawsSomin 14 — Ilya Somin, Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" and "Democracy and Political Ignorance: Why Smaller Government is Smarter," 11-20-2014 ("Obama, immigration, and the rule of law [updated with additional material on precedents for Obama’s action, and a response to Timothy Sandefur]", Washington Post, 11-20-2014, Available Online from https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/20/obama-immigration-and-the-rule-of-law/?utm_term=.4df40c358882, Accessed on 7-13-2018, MWM)

Opponents of President Obama’s recently announced plan to defer the deportation of up to 5 million undocumented immigrants argue that it undermines the rule of law. After all, they contend, the president is required to enforce federal law as written, not pick and choose which

violators to go after and which to exempt. But, in reality, all modern presidents inevitably make policy choices about which violations of federal law to prosecute. Obama’s decision to defer deportation is in line with those of past presidents, and well within the scope of his authority.

To the extent that the rule of law is in jeopardy here, it is because the scope of federal law has grown so vast that no administration can target more than a small percentage of violations , thereby unavoidably giving the president broad discretion . Moreover, at least under the original meaning of the Constitution, the legality of the immigration laws that Obama has chosen not to enforce in some cases is itself suspect.

I. Executive Discretion in Enforcement of Deportation Laws is not Illegal

Because of the enormous scope of federal criminal law, presidents routinely exercise extraordinarily broad discretion in deciding which violations to prosecute . Far more violators are systematically ignored than punished . To take just one of many examples, for decades federal law enforcement officials have almost never prosecuted the possession and use of marijuana on college campuses , even though such possession is clearly forbidden by the Controlled Substances Act. By doing so, they have let many millions of federal criminals of the hook, including the last three presidents of the United States – far more than are exempted from deportation by Obama’s policy.

Article II of the Constitution states that the president must “take Care that the Laws be faithfully executed.” But that does not mean that the president has an absolute duty to prosecute all violations of federal law, or that he cannot choose which ones to pursue based on policy considerations. If it did, virtually every president in the last century or more would be in violation.

Some argue there is a crucial distinction between case-by-case decisions not to prosecute (as with

marijuana possession on campus) and a generalized , systematic policy of not doing so in a category of cases. But that distinction makes little sense . After, all, case-by-case decisions are often driven by policy considerations such as the the harm caused by the violation in question and whether federal resources might be better employed elsewhere. At the very least, there is no meaningful difference between a de facto policy of exempting a large category of violations from prosecution (as with marijuana

possession on campus) and a more explicit, formal decision to the same effect. If anything, the latter is preferable because it is more transparent and more readily subject to public scrutiny and debate.

Moreover, past presidents such as Ronald Reagan and George H.W. Bush have systematically exempted large numbers of illegal immigrants from deportation, including some 1.5 million people in the case of Bush. That does not by itself prove that Obama is acting legally; perhaps Reagan and Bush were undermining the rule of law as well. But it does at least provide an important precedent , especially since few in either party claimed that the prior administrations’ actions were illegal at the time they were done. In this field, Congress itself has delegated wide latitude to the president, which makes the exercise of discretion even less problematic than in many other cases where the law is written in a more categorical way.

II. Dangers of Excessive Discretion and the Overexpansion of Federal Law

To the extent that large-scale use of prosecutorial discretion is ever appropriate, it is surely so in the case of helping people whose only violation of the law is fleeing poverty and oppression under terrible Third World governments. Few other offender s have such a compelling moral justification for breaking the law. I strongly support the legalization of marijuana and the abolition of the War on Drugs more generally. But illegal immigrants violating the law to escape Third World conditions are considerably more deserving of our compassion than college students violating it to experiment with marijuana or other ille gal drugs. If exemption from prosecution is acceptable for the latter, it should be permitted for the former too.

There is a danger that wide-ranging presidential use of prosecutorial discretion can result in abuses of power. Indeed, such ab use is almost inevitable in a world where the scope of federal law is so broad that most Americans have probably violated it at one point or another, but only a few are ever likely to be investigated and prosecuted . But that danger existed long before Obama’s announcement today, and the president has not made it any worse than it was before. Long before today, presidential administrations unavoidably had to make broad discretionary decisions about which of the many violations of federal law out there are worth prosecuting and which ones are not. And long before today, those decisions were influenced by policy and moral considerations.

Some safeguards are provided by constitutional bans on certain types of discrimination. For example, the president cannot choose which offenders to prosecute based on their race, gender or religion. But the only way to really fix the problem of excessive discretion is to reduce the scope of federal law such that the federal government can go after a much higher percentage of violations. We can also reduce it to encompass a much narrower range of offenses, hopefully only those for which there is a broad bipartisan consensus that they really are serious crimes deserving of punishment. That way, presidents will hesitate to forego enforcement of them, because doing so will result in paying a high political price. So long as we have a large number of federal laws that neither the public nor the political elite really wants to enforce to the hilt, there will be extensive opportunities for abuse.

III. The Originalist Case for Obama’s Policy

Finally, it is worth noting that the the immigration laws covered by the president’s executive order may go against the original meaning of the Constitution. Under the original understanding, Congress did not have a general power to restrict immigration (though it did have power over

naturalization). That may not matter to adherents of “living constitution” theories of legal interpretation. It also should not matter to those who believe that the Constitution generally means whatever Supreme Court precedent says it means. Immigration restrictions have been deemed permissible under longstanding precedent dating back to 1889.

But it should matter to those who consider themselves constitutional originalists, which includes many of the conservatives who have been

most vehement in opposing Obama’s actions today. If you believe that the Constitution should be interpreted in accordance with its original meaning, and that nonoriginalist Supreme Court decisions should be

overruled or at least viewed with suspicion, then you should welcome the use of presidential discretion to cut back on enforcement of laws that themselves go against the original meaning.

I am no fan of the Obama administration’s approach to constitutional interpretation. In too many instances, the president really has acted illegally and undermined the rule of law – most notably by starting wars without congressional authorization. But today’s decision isn’t one of them.

UPDATE: Co-blogger Jonathan Adler discussed the wide latitude for executive discretion under immigration law in this post.

UPDATE #2: I would add that the part of the president’s new policy offering work permits to some of those whose deportation is deferred in no way changes the analysis above . The work permits are merely a formalization of the the president’s exercise of prosecutorial discretion here, which indicates that the administration will not attempt to deport these people merely for being present in the United States and attempting to find jobs here. They do not purport to legalize their status, and the policy of nondeportation can be reversed at any time by the president or his successor.

In addition, the federal statute that forbids employment of “unauthorized aliens” includes an exemption for those “authorized to be so employed by this chapter or by the Attorney General,” and the AG is presumably going to issue such authorizations for those covered by the president’s executive order.

UPDATE #3: Some argue that the George H.W. Bush’s decision to exempt some 1.5 million illegal immigrants from deportation in 1990 is different from Obama’s decision because the former exercise of discretion was authorized by Congress in the 1986 I mmigration R eform and C ontrol A ct, which gave the president authority to preclude deportation in cases where doing so would “assure family unity.” But as the Office of Legal Counsel points out in its memo defending Obama’s actions, other federal laws give the president authority to forego deportation more generally, including cancellation of removal. Moreover, as the memo points out, the Supreme Court in Arizona v. United States has explicitly interpreted existing immigration law as giving the the executive branch the authority to defer deportation for humanitarian reasons:

A principal feature of the removal system is the broad discretion exercised by immigration officials… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.

UPDATE #4: Timothy Sandefur responds to this post here, arguing that Obama’s actions are inconsistent with the word “faithfully” in the Take Care Clause. As he puts it, “taking actions the President himself has repeatedly admitted are illegal–not as a result of budgetary problems, but simply because he disagrees with current law, is not faithful execution of the law.” But Sandefur also admits that “A president faced with limited resources who chooses to prosecute only the severest crimes the budget will allow, is faithfully taking care that the laws be executed.” The judgment of which crimes are the “severest” necessarily rests in large part on policy and moral considerations. Thus, in a world where, due to budgetary constraints and the enormous scope of federal law, the president can only prosecute a small fraction of all violators, he can legitimately choose to prosecute those offenses he considers most severe based on policy and moral judgments. That is true in the case of drug laws, and it is equally true in the case of immigration law. Indeed, it is more true in the case of the latter, given the broad discretion Congress has delegated him.

Sandefur also worries that my analysis gives the president so much discretion “that no president would ever be in violation” of the Take Care Clause. Not so. A president who uses executive power to harrass people who haven’t violated any law would be in violation of the duty to “faithfully” execute the law on the books. He would also be in violation if he chose targets for prosecution not based on the severity or importance of the crimes they committed but based on personal or political animus towards the accused. He would also be in violation if he attempted not only to refrain from

prosecuting violators, but to decree that they had not violated the law at all , thereby precluding future presidents from going after the perpetrators as well. Obama has arguably done the latter in the case of his

Obamacare waivers. But he did not do it in his immigration executive order.

UPDATE #5: Sandefur responds further in an update to his original post:

Seems to me Prof. Somin gives up when he says that the President would violate the Take Care Clause if he “chose targets for prosecution not based on the severity or importance of the crimes they committed but based on personal or political animus towards the accused.” I see no difference in principle between that and choosing not to enforce the law out of political animus toward the law itself. Both are bad faith refusals to see that the laws be executed, and this violate the Constitution. he only alternative to that view, it seems to me, is to read the word “faithfully” out of the Clause and this allow the President unlimited authority to choose which laws to enforce and which to disregard, based on his own preferences.

There is an obvious difference between choosing enforcement priorities based on policy judgments about the law in question, and doing so based on purely personal animus against the offender. The former is based on a judgment of the public benefits of law enforcement priority, whereas the latter is not a law enforcement objective at all, but a matter of personal antagonism between the executive and the defendant . If making such a distinction means giving up on using the Take Care Clause to limit presidential discretion, than

Sandefur himself has given up, given his willingness to allow the president to pick and choose targets based on his judgment of the severity of violations. Judgments of severity are inevitably linked to policy and moral considerations similar to those that likely motivated Obama’s executive order on immigration.

Prosecution based on political animus against an individual is even more easily distinguished from discretion based on policy considerations relating to the nature of the law at issue. Targeting potential defendants based on their political views threatens First Amendment individual rights. Unlike individuals, laws don’t have any First Amendment rights.

Finally, Sandefur’s rejoinder ignores the various other limits on presidential discretion mentioned in my earlier post. I note some additional ones here.

Trump has the power to dictate prosecutorial discretionChambers 18 — Henry L. Chambers, Jr., teaches and writes in the areas of constitutional law and criminal law, and is a member of the American Law Institute, 2018 (“THE PRESIDENT, PROSECUTORIAL DISCRETION,OBSTRUCTION OF JUSTICE, AND CONGRESS”, University of Richmond Law Review, 2-26-18, Available Online at http://lawreview.richmond.edu/files/2018/04/Chambers-523.pdf, Accessed 7-13-18, KM)

The executive power of the United States is vested in the President of the United States.1 That power includes prosecutorial discretion —the power to prosecute or decline to prosecute .2 Consequently, the President would appear to have the constitutional authority to initiate or end a federal criminal prosecution or investigation. This would seem particularly so in an era in which executive power arguably continues to expand. Nonetheless, an ongoing debate exists regarding whether a President obstructs justice when he attempts to end a criminal investigation for improper reasons.3 Those who argue in favor of the possibility of obstruction of justice suggest that a President can so misuse a power that has been given to the office that the exercise of the power is an act of malfeasance, criminality, or both.4 Those who argue against the possibility of obstruction tend to rely on the President’s executive power.5 The debate is too large to fully resolve in this brief essay. Instead, this essay sketches the contours of the debate and briefly considers which questions surrounding the debate are particularly difficult to resolve and which are not. Part I discusses executive power. Part II addresses the President’s

control over prosecutorial decision-making. Part III explores when a President’s attempt to end a criminal prosecution or investigation might obstruct justice. Part IV considers whether Congress’s independent ability to investigate a matter should be relevant to whether presidential action ending a criminal investigation should be considered an obstruction of justice. I. EXECUTIVE POWER The Constitution confers the President enormous authority by vesting executive power in the office of the President.

A2: Illegal (Sandefur)Sandefur is wrong – prosecutorial discretion is legalSomin 14 — Ilya Somin, Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" and "Democracy and Political Ignorance: Why Smaller Government is Smarter," 12-16-2014 ("My Reason article on why Obama’s immigration policy is constitutional [Updated with a brief response to Timothy Sandefur]", Washington Post, 12-16-2014, Available Online from https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/16/my-reason-article-on-why-obamas-immigration-policy-is-constitutional/?utm_term=.7bc5d75fa5db, Accessed on 7-25-2018, MWM)

I would add that Sandefur is wrong to analogize Obama’s actions to a “suspension” of law, which probably would indeed violate the Take Care Clause of the constitution. A suspension of law implies that those who violate it during the period of the suspension have not done anything illegal , and cannot be prosecuted in the future. By contrast, prosecutorial discretion is merely a decision not to prosecute that in no way implies that the beneficiaries of it have acted legally . And such a decision – like Obama’s order – can be reversed by the executive at any time in the future, at which point the law could still be enforced against violators who had previously been spared by executive action . Obama has indeed attempted to suspend the law in the case of the Obamacare waivers; but he hasn’t done so in his immigration order. The administration claims that the beneficiaries of the waivers are immunized from any future liability for violating the law during the period when the waiver applies. By contrast, the beneficiaries of the executive order deferring deportation can still be deported in the future if Obama or his successor choose to rescind the order.

A2: BacklogProsecutorial Discretion helps solve backlogs in immigration courtsZatz and Rodriguez 14 – Marjorie S. Zatz, American Sociologist and Professor of Sociology at UC Merced; Nancy Rodriguez, professor in the School of Social Ecology at UC Irvine, 2014 (“The Limits of Discretion: Challenges and Dilemmas of Prosecutorial Discretion in Immigration Enforcement,” Law and Social Inquiry, Summer 2014, Available Online at https://onlinelibrary.wiley.com/doi/pdf/10.1111/lsi.12083, Accessed 7/24/18, nhs, IY)

The next major stepping stone toward today’s exercise of prosecutorial discretion was a 2005 memo by William J. Howard, Principal Legal Advisor for ICE. A surge in border enforcement activity led to a tripling of caseloads in immigration courts between 2001 and 2005, stretching limited agency resources and making prosecutorial discretion an important tool for achieving agency goals (Howard 2005, 2). In addition to the value of prosecutorial discretion in times of scarce resources, Howard also reiterated that discretion “is a very significant tool that sometimes enables you to deal with the difficult, complex and contradictory provisions of the immigration laws and cases involving human suffering and hardship” (2005, 8)

A2: Links to Net BenefitProsecutorial discretion is invisible and unreviewable — it avoids backlash.Kamin 16 – Sam Kamin, Ph.D from UC Berkeley and Law Professor at Sturm College of Law, 2016 (“Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle,” Ohio State Journal of Criminal Law, November 22nd, Available Online at http://moritzlaw.osu.edu/students/groups/osjcl/files/2016/12/06-Kamin.pdf, Accessed 7/10/18, nhs, IY)

To the extent that marijuana and immigration policy are mentioned together on the national stage, it is usually in the context of pointing out that, despite the relaxation or elimination of many states’ marijuana prohibitions, marijuana possession and manufacture can still be grounds for the deportation of migrants otherwise in the country lawfully. However, these two seemingly disparate policy arenas share one other important thing in common: in the enforcement of both federal marijuana law and immigration policy, the Obama administration has quite publicly promulgated a policy of limited and selective enforcement of federal law.1 Unable or unwilling to change federal policy in these areas through legislation, the Obama administration has, controversially, sought to use its enforcement discretion to achieve its preferred policy outcomes. Marijuana and immigration , then, serve as important tests of the permissible power of the executive to set federal policy through the selective enforcement of the law as written rather than through legislative enactment. It is a truism, of course, that few governmental decisions are as unreviewable as the authority of a prosecutor to decline to prosecute a particular case.2 In a world of limited resources and widespread criminal conduct, 3 it is generally understood that the exercise of prosecutorial discretion is an essential part of enforcing the law—determining when a violation can be proven to a jury beyond a reasonable doubt and, perhaps more importantly, whether doing so is worth the candle, are exactly the kinds of judgment we generally entrust to prosecutors in the United States. Moreover, while the decision to actually prosecute a particular case is subject to veto by trial judges, juries, and appellate courts, the decision not to prosecute is almost always invisible and unreviewable .4 Thus, if we think of the Obama administration’s policies of selective enforcement as just a species of prosecutorial discretion, they should be relatively uncontroversial . Every prosecutor , every day , exercises similar discretion in the administration of her office.

Prosecutorial discretion is an invisible tool to prevent the deportation of immigrants – it’s a no-action optionWadhia 14 – Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Clinical Professor of Law at Penn State, Director for the Center for Immigrants’ Rights Clinic, 2014 (“Immigration Remarks for the 10th Annual Wiley A. Branton Symposium,” Howard Law Journal, Spring 2014, Available Online at http://www.lexisnexis.com.proxy2.cl.msu.edu/lnacui2api/results/docview/docview.do?docLinkInd=true&risb=21_T27708432709&format=GNBFI&sort=RELEVANCE&startDocNo=1&resultsUrlKey=29_T27708432713&cisb=22_T27708432712&treeMax=true&treeWidth=0&csi=7385&docNo=3, Accessed 7/10/18, nhs, IY)

This morning (despite the pressure that our panel comes right before lunch), I am going to provide a "101" on the role of prosecutorial discretion in immigration law, which is my primary area of research

and fundamental to understanding how the immigration system operates. Prosecutorial discretion is a largely invisible tool that enables thousands, if not millions, of unauthorized noncitizens to reside in the United States without fear from deportation. It may be characterized as invisible because prosecutorial discretion decisions are largely connected to no action at all or as some call it, non-enforcement. A favorable exercise of "prosecutorial discretion" refers to a decision by a Department of Homeland Security, or DHS, employee to abstain from enforcing the immigration laws against a person or group [*932] of persons. n1 A grant of immigration prosecutorial discretion does not amount to a formal legal status but rather functions as a tenuous one.

Prosecutorial power is unreviewable — means no court challenges.Mahini ’00 (Robert Mahini, Government Law at The George Washington University Law School, and has published articles on the laws and regulations unique to government attorneys. , policy counsel at google, “NOTE: There's No Place Like Home: The Availability of Judicial Review Over Certification Decisions Invoking Federal Jurisdiction under the Juvenile Justice and Delinquency Prevention Act,” May 2000, 7/18/18) ssk

Adhering to the analytical framework established in Vancier, courts in the post-1984 majority have also emphasized the traditional assumption that any exercise of prosecutorial discretion is unreviewable . 100 In addition, these courts have expanded upon this general premise, specifically focusing on the traditional prosecutorial discretion of federal prosecutors. 101 For example, courts in the majority have repeatedly compared the certification determination to the federal prosecutor's decision to prosecute any case in the federal forum. 102 Finding that both decisions draw on executive considerations such as enforcement priorities and deterrence value, the majority of circuits have determined that certification merely constitutes another exercise [*1326] of a prosecutor's unreviewable power to invoke the federal government's judicial authority. 103 Some circuits also looked to the United States Attorneys' Manual for support in sustaining the exclusive discretion

of federal prosecutors. 104 Again emphasizing the omission of clear statutory standards, these courts pointed to the Manual's repeated use of the term "substantial federal interest" as a guideline for the appropriate exercise of general prosecutorial discretion. 105 Describing the "substantial federal interest" inquiry as vital to federal prosecutors in any decision invoking federal jurisdiction, these circuits characterized the certification process as a regular and appropriate exercise of federal prosecutors' discretionary powers . 106

Ext Base DA -

The biggest thing is to answer the affirmative arguments – extend evidence already read and provide an impact calculus.

Next to Impact Calculus

(Explain how the impacts of this Disadvantage outweigh the affirmative’s disadvantages)

Prefer the negative impacts of the Wages DA to the negative impacts. Our impacts outweigh the affirmative’s on:

A. Probability – (explain in your own words)B. Time-Frame – (explain in your own words)C. Magnitude – (explain in your own words).

Ext Balkanization DA

The biggest thing is to answer the affirmative arguments – extend evidence already read and provide an impact calculus.

Next to Impact Calculus

(Explain how the impacts of this Disadvantage outweigh the affirmative’s disadvantages)

Prefer the negative impacts of the Balkinzation DA to the negative impacts. Our impacts outweigh the affirmative’s on:

A. Probability – (explain in your own words)B. Time-Frame – (explain in your own words)C. Magnitude – (explain in your own words).

Now to Case

Plan – Extend Procedural

Adv 1 - Extend Neg Args

Adv 2 - Extend Neg Args

Solvency – Extend Neg Args