National Review's editorial board is arguing that Senate Republicans should “resist” Loretta Lynch's nomination to become the next U.S. attorney general because the board refuses to believe that “amnesty” is not forthcoming, and it falsely claims Lynch thinks there is a constitutional right for undocumented immigrants to work.
On January 28, Lynch appeared before the Senate Judiciary Committee, where questions from Republican members focused primarily on whether Lynch believes that President Obama's immigration action was legal. Legal experts agree that the action -- which temporarily defers deportations for some undocumented immigrants who meet a series of qualifications and pass a criminal background check -- is a lawful exercise of the president's authority to use prosecutorial discretion to prioritize some deportations over others.
Nevertheless, right-wing media are playing up questions from Republican senators who believe that the immigration order is unconstitutional and attacking Lynch for her responses, even if they don't understand what she said. National Review took it further in a January 29 editorial, claiming that confirming Lynch would be “an abnegation of [Senate Republicans'] November mandate and, even more important, their constitutional duty.”
The editorial also claimed that Lynch had “evaded questions” from Sen. David Vitter (R-LA) about whether Obama's “amnesty order” will allow law-enforcement agencies to make decisions case by case. The editorial went on to take Lynch's comments about whether undocumented immigrants have the right to work out of context and ignored her subsequent clarification, calling her remarks “constitutionally insupportable”:
In Senate confirmation hearings held this week, Ms. Lynch has evaded questions from Louisiana senator David Vitter about whether the amnesty order will actually be carried out on a “case-by-case basis,” as even the administration's own lawyers say is required by law, and from Utah senator Mike Lee and Texas senator Ted Cruz about whether a future president could, under President Obama's rationale of “prosecutorial discretion,” decline to enforce tax or labor or environmental laws. But among the things she has stated unequivocally is her belief that the president's executive order is “legal and constitutional.” She even went further, telling Alabama senator Jeff Sessions that “the right and the obligation to work is one that's shared by everyone in this country regardless of how they came here.” Such an assertion is both ahistorical and constitutionally insupportable. But it is the president's own alarming view, and simply confirms that Ms. Lynch, like Eric Holder, would lend the Justice Department's endorsement to the president's lawlessness.
As even Fox News host Megyn Kelly has admitted, the executive action is not amnesty -- it is an exercise of prosecutorial discretion, common in all forms of law enforcement and not just in the context of immigration. According to Kelly, the word “amnesty” is “a hot-button term that the right uses to sort of get people upset.”
National Review also ignores the fact that it's not just "the administration's own lawyers" who have repeatedly said that the immigration action is intended to be implemented on a case-by-case basis. Multiple agencies in the executive branch -- from the West Wing, to the Justice Department, to the Department of Homeland Security, to the U.S. Citizenship and Immigration Services (USCIS) -- have repeatedly said so.
On December 5, the White House press secretary confirmed that the president's “actions will allow undocumented immigrants who have resided in the United States for at least five years, are parents of U.S. citizens or lawful permanent residents, and are non-priorities for removal to seek temporary immigration relief, on a case-by-case basis, by registering, passing background checks, and getting right with the law.” On November 20, the DHS secretary instructed American immigration officers charged with law enforcement that “immigration officers will be provided with specific eligibility criteria for deferred action, but the ultimate judgment as to whether an immigrant is granted deferred action will be determined on a case-by-case basis.” The information that USCIS currently provides to undocumented applicants even helpfully defines the term for anyone who bothers to check: "Deferred action: A use of prosecutorial discretion to not remove an individual from the country for a set period of time, unless the deferred action is terminated for some reason. Deferred action is determined on a case-by-case basis and only establishes lawful presence but does not provide immigration status or benefits of any kind."
Despite National Review's claims, Lynch said as much in her testimony, noting that, “As a prosecutor I always want the ability to still take some sort of action against those who may not be in my initial category as the most serious threat. And I didn't see anything in the [administration's] opinion that prevented action being taken [against] individuals who might otherwise qualify for the deferral.” In practice, this is how deferred action has always worked. The Deferred Action for Childhood Arrivals (DACA) program, which Obama's immigration actions build on is one example. As law professor Stephen Legomsky pointed out, prosecutorial discretion isn't a blanket free pass -- according to USCIS, 32,000 DACA applications have been denied on the individual merits, all at the discretion of the agency.
Moreover, the idea that Lynch believes that undocumented immigrants have a right to work is a misleading portrayal of her actual comments. In fact, Lynch confirmed there is no “federal right for an immigrant who is not lawfully here to work.” Undocumented immigrants whose deportations are delayed under this most recent executive action will be able to apply for work authorization permits thanks to a 1986 law that has nothing to do with Obama.
From Lynch's testimony:
Ms. Lynch: I believe the right and the obligation to work is one that is shared by everyone in this country, regardless of how they came here. Certainly, if someone is here -- regardless of status -- I would prefer that they be participating in the workplace than not participating in the workplace.
Senator Schumer: Earlier you said you had a preference that all individuals here in the United States work regardless of status. I think this is confusing for people because there are literally nearly 100 categories of statuses. . . Many people who are not U.S. citizens have a legal right to work, for example, greencard holders. . . .What did you mean when you said you think everyone should work regardless of status?
Lynch: When I made that comment I was really making more of a personal observation... As we grew up, we were all expected to try and find employment as part of becoming a responsible adult and as part of becoming a responsible member of society. So I was making a personal observation based on the work ethic that's been passed down to me by my family, not a legal observation.
Senator Schumer: So again, to reiterate, you don't believe that there's a federal right for an immigrant who is not lawfully here to work?
Lynch: No sir, not at all.