The Christmas decision to pardon two felons who were in custody awaiting deportation may be seen as the latest act in a growing list of acts committed by California Gov. Jerry Brown in defiance of U.S. immigration law. While some may view the move as a brazenly political shot at the Trump administration, it is a first step toward the end goal of amnesty for millions of illegal immigrants.
The notion of exploiting federal immigration law through the use of the pardon power is not a new idea, but one which is garnering more attention as open border activists pressure lawmakers at all levels to adopt their agenda.
“Democrats have a novel and so-far unrealized capacity to stop President Donald Trump from deporting undocumented immigrants: the power of the pardon,” argued Andrew Novak in the opening of an April piece in The Daily Beast.
Novak was incorrect in asserting it was a “novel” idea, as a 2014 column in The Huffington Post that explored talk of President Obama using “this power” to “grant amnesty and permanent residency to all or a subset of undocumented immigrants.”
The president’s constitutional pardon power under Article II §2, does not apply to deportation under immigration law as it’s a civil matter and not punishment. http://thehill.com/blogs/pundits-blog/immigration/308099-tis-the-season-for-executive-overreach
But that has not dissuaded activist lawmakers from pursuing their goals.
In the waning days of the Obama presidency, members of Congress raised their voices and the pressure on the president to take action.
Led by Illinois Rep. Luis Guitierrez, some 60 members of the House sent a letter in December 2016 calling on Obama to issue a “full, categorical pardon” for the beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program.
For open border activists like Guitierrez, DACA is not the end game.
“This is only the beginning. So for those who think this is too many, we’re here to protect millions and millions and millions more. This is the beginning,” he said last year, according to The Washington Times.
It is a tactic used by then-Gov. Terry McAuliffe of Virginia last May in a failed attempt to prevent the deportation of Liliana Cruz Mendez by pardoning her for a 2013 misdemeanor charge of driving without a license. Cruz Mendez, an El Salvadoran native, was returned to her country last summer.
However, state intercession in deportation proceedings predates the Trump administration.
In 2015, New York’s Democratic Gov. Andrew Cuomo wiped away the robbery and drug charges against two illegal immigrants. The pardons were merited, he said, because the “positive contributions to society” since release from prison supported “the case for justice to be delivered through clemency,” according to The New York Daily News.
Cuomo’s predecessor, David Paterson, used clemency to clear the record of a 35-year old Vietnamese native who was imprisoned at 17 for participating in a series of robberies. All pardons in New York are subject to review by the state parole panel and Paterson did specify only legal permanent residents and green card holders would be considered for pardons.
The pardons may wipe the criminal slate clean, it is not enough to erase an illegal entry into the United States.
Even Cecilia Munoz, a domestic policy adviser under President Obama, admitted as much.
“I know people are hoping that pardon authority is a way to protect people. It’s ultimately not, for a couple of reasons: one is that pardon authority is generally designed for criminal violations not civil, but also it doesn’t confer legal status; only Congress can do that. So ultimately it wouldn’t protect a single soul from deportation,” she said in a November 2016 interview.
California, New York and other sanctuary jurisdictions are likely to continue to challenging the constitutional authority of Congress to set the criteria for offenses that make a noncitizen subject to deportation. And there is little doubt they will be cheered by the mainstream media. What remains an unanswered question is whether Congress or the Justice Department will reassert the powers granted to them under the U.S. Constitution.