However, again, I want to point out McDonald's minor errors:
Obviously, S.B. 1070 does not interfere with trade and commerce nor with
welcoming legal immigrants and visitors. I would hope that it would not conflict
with a “humanitarian” dispensation for an illegal alien, but if such
humanitarian relief is discretionary on the part of the executive, I’m not sure
where Andy would come out on the question. If ICE said: “Hands off that illegal: he’s cooperating with us against a drug kingpin,” or, “Our feminist
agenda dictates that we want to protect this allegedly battered woman against her brutish machismo partner back in Mexico,” and Arizona
responds: “Tough, we’re locking these folks up anyway; what part of ‘illegal’
don’t you understand?” I’m not sure where Andy would come out.
First, if a person in the U.S. illegally has information, will act as a source, or will testify in court for ICE, or any other law enforcement agency, that alien will be provided a lawful status. They are paroled into the United States, issued a CBP Form I-94 Arrival/Departure Record, issued an Alien Registration Number, and given employment authorization. There is a legal procedure for such cases, and ICE is supposed to use it. It is rumored that the DEA does not like to follow that procedure, but that is on them, they should be following it.
The second case is an alien applying for protection under VAWA, which is a much abused law that illegal aliens use, falsely claiming abuse, not just physical, and demanding legal permanent residency in return. A great deal if you can get it. Your husband yells at you and you, and your husband get a green card. VAWA applicants can be either legally here or illegally, so it is not really much of an issue, but an alien who applies under VAWA is issued an Alien Registration Number and therefore, even if arrested, will not be deported or, if arrested by ICE or the Border Patrol, will make their VAWA claim before a Hearing Officer of the Executive Office for Immigration Review. The same applies to asylum applicants who are here either legally or illegally. It is unlikely that any County DA will be choosing to prosecute women claiming protection under VAWA over the run-of-the-mill illegal.
In any event these are the few rare examples of why ICE legally would not remove an alien. In all other cases, not taking action is a political decision, not based on law, and certainly is non-feasance, hence illegal. Federal employees get paid for doing their job, not for not doing it. In any event the Arizona statute does not burden ICE or the Border Patrol. ICE employees are legally obligated to work unlimited amounts of overtime because they receive Law Enforcement Availability Pay (LEAP) a 25% raise in their base pay in lieu of overtime. ICE basically has unlimited resources, it can force its employees to work the long hours necessary to remove illegal aliens. But, in any event, they are not overly taxed in Arizona. Ongoing operations actually have augmented ICE deployment in Arizona because of the work ICE agents do enforcing laws on outbound traffic to Mexico. Which, by the way, should be the responsibility of Customs and Border Protection Officers at Ports-of-Entry. ICE's responsibilities relate to aliens remaining in the U.S. away from the border. CBP handles inspection of arriving and departing persons, both U.S. citizens and aliens. ICE should be out arresting illegals. Leave the inspections to the experts at CBP's Office of Field Opertations.
Hugh Hewitt likes to brag about his smart-guy lawyers, and he, like Obama, seems to think that lawyers can do anything, even not-enforce the law like John Morton does or doesn't, but McCarthy and McDonald are smart guys and gals. However, you got to know the details when you are an attorney and the small details matter. Sometimes they just sink your whole argument. In any event, they both are bright lights at NRO. I hope they don't get the same treatment in the future that Peter Brimelow got.