(There are exceptions to this, but they tend to be in situations of grave extremity out somewhere far beyond the beltway, sort of when an FSO becomes a "strategic corporal.")
So most sober FSOs, if they meet someone who says they're interested in making foreign policy, shouldn't encourage them to become FSOs. They should instead direct them to the arena of electoral politics, because it is politicians who make foreign policy, not diplomats.
(Of course, if a politician makes a successful foreign policy, or even survives long enough that people forget their unsuccessful foreign policies, they become known as statesmen.)
For consular officers the mantra is slightly different: consular (and immigration) officers don't make immigration law, regulations, or policies. Consular (and immigration) officers implement the immigration laws, regulations, and policies as they are written, and not as we might (even if we agreed among ourselves) have written them ourselves.
One corollary to all that has to do with public criticism of existing immigration laws, regulations, and policies.
CAA is more than happy to discuss positive and negative aspects of proposed or pending legislation while Congress is debating and deliberating. However, once something is signed into law, CAA will salute smartly and do his best to make it work.
That's what you sign up for when you raise your right hand and take the oath of office. (And if you get to a point where you just can't do that anymore, then it's time to think about hanging up your guns.)
Not that long ago, a change in visa interview policy raised some eyebrows (and hackles). You see, CAA maintains a very post-9/11 mindset when it comes to interviewing visa applicants, and is very on-board with the post-9/11 policy of interviewing all visa applicants, and in conducting as thorough a screening of visa waiver travelers as is practical.
So CAA viewed the Visa Pilot Program with a critical, even jaundiced eye. And came away somewhat grudgingly satisfied with what they have in mind.
So what about the president's recent statement?
Well, CAA tried to find if this was an executive order, but there doesn't seem to be anything published by the White House to indicate that one's actually been published on the subject. Apparently that's not how this is being handled.
(CAA had assumed, based upon all the hollering by the commentariat, that the president had essentially enacted the DREAM Act as an executive order. But that's not actually the case.)
But the president's remarks, once read in their entirety, left a big enough clue: the secretary of homeland security is the person actually issuing this order.
The key points:
"DHS continues to focus its enforcement resources on the removal of individuals who pose a national security or public safety risk, including immigrants convicted of crimes, violent criminals, felons, and repeat immigration law offenders. Today’s action further enhances the Department’s ability to focus on these priority removals.
Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:
- Came to the United States under the age of sixteen;
- Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
- Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
- Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
- Are not above the age of thirty.
Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurance that all such requests will be granted. The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights.
While this guidance takes effect immediately, USCIS and ICE expect to begin implementation of the application processes within sixty days"
Essentially, the DHS secretary is going to de-prioritize enforcement of immigration laws against a class of persons residing unlawfully in the U.S. based upon the reality that DHS has only so much in the way of resources, only so many enforcement agents, only so many budget dollars, only so many hours in a day, and only so many cells in their jails.
Executives are expected to exercise both leadership and management. Prioritizing the outlay of limited resources is part of the function of an executive. So that sounds, on the face of it, reasonable enough.
CAA is something of an executive, a manager, even (dare I say it?) a leader in the consular arena of immigration and has been known, when mentoring new vice consuls about how to implement and apply visa ineligibilities, that the bottom line for all the different reasons that someone can be legally barred from coming to the U.S. is a simple question: is this person a danger to the republic? Is this person likely to present a threat to national security, to commit crimes against U.S. citizens, to transmit dangerous (when considering certain medical ineligibilities) contagious diseases among the American people?
The group of people described by the DHS secretary don't, aside from their having been (as minor children) brought to the U.S. illegally, fit the bill for the bottom line as I've described it above.
It follows logically enough that if you're going to publicly announce that DHS finds this particular, clearly-defined, class of illegal aliens an insufficient threat to the nation to expend resources to deport them, that you then cowboy up and not ignore the problem the represent either.
It's quite clever, really, except that the solution DHS is going to, temporarily mind you, pursue will then require the expenditure of those scarce resources I mentioned, in order to receive, process, and provide temporary work permits, &tc.
You see, for legal immigrants, the cost expended in processing their immigration paperwork is recouped through the imposition of application fees. That is, Congress expects that the system will pay for itself so that they don't have to appropriate a huge budget every year to pay for it out of general tax revenues.
So I'm missing the part about what sort of application and processing fees are going to be imposed on the one million (give or take) illegal immigrants who may qualify for this temporary dispensation. Because, assuming all of those eligible go ahead and apply, a million (temporary) amnesty applications are going to take a lot of people away from processing the paperwork of legal immigrants who've been patiently waiting their turn to immigrate lawfully to this country.
Oh, and remember that oath of office? It's to the U.S. Constitution. So I read that every once in a while, when the mood strikes me. (It's really not that long a document.)
So CAA will admit there may be some Constitutional issues about whether it's strictly lawful for the executive branch to simply announce that it's too hard to implement and enforce the laws that Congress passes (or doesn't pass).
It's a gutsy move, frankly, and I'd have liked to see it done long ago in relation to immigration laws, but not necessarily in this context.
Congress has, IMHO, long left the immigration enforcement arms of government somewhat starved of resources to enforce the entirety of the immigration laws it's passed, and many have suggested that to be deliberate, that Congress (or at least some congressmen) wanted the laws on the books, but didn't necessarily want them enforced all that thoroughly. (Reasonable people can disagree on this.)
That being said, I'm sure this will end up in the courts, one way or another; will likely reach the Supreme Court, and in the meanwhile the rest of us working stiffs in government will just follow the lawful directives of our elected and appointed officials while the big paychecks, er, brains sort this out for us.
After all, either Congress will enact legislation making it legal, or the courts will tell us it's legal for the executive to prioritize this and handle the fallout accordingly, or it'll all get thrown out and DHS will have plenty of information on about a million self-identified illegal immigrants with which to jump-start their deportation proceedings.
