Biden’s DHS: Deception Without a Hint of Shame
A new rule is a window on the administration's slippery justifications for policy moves
By George Fishman on March 20, 2023
It was a rare treat to read the rule recently proposed by the Departments of Homeland Security and Justice titled “Circumvention of Lawful Pathways” (For ease of reference, the “CLAP”). For, in giving us the CLAP, the departments have invited readers to attend a masterclass in deception, in dissembling, in deceit. Their work should be required reading, along with classics like How to Lie with Statistics, for all aspiring propagators of disinformation. For the rest of us, it should also be required reading, just to give us a window into the facile and slippery methods the Biden administration utilizes to justify some of its policy decisions in the immigration sphere.
The CLAP
Why did the Biden administration give us the CLAP? As I have written:
[T]he CLAP ... converts the Trump administration’s bar to asylum eligibility [for aliens who travel through one or more third countries en route to the U.S. without applying for asylum in at least one [of those counties] into a “rebuttable presumption” of ineligibility, thereby allowing the Biden administration to exempt huge segments of the population of aliens who would choose to enter the U.S. illegally. How did we get the CLAP’s exceptions and loopholes? I would surmise that the rules’ drafters were told to add them in a deliberate attempt ... to make the CLAP impotent, a Potemkin village of feigned immigration enforcement.
When promulgating regulations, agencies know that reviewing courts will, pursuant to the Administrative Procedure Act (APA), “hold unlawful and set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”. As the Supreme Court explained in 1983, “Normally, an agency rule would be arbitrary and capricious if the agency ... entirely failed to consider an important aspect of the problem.” And as the First Circuit explained last year, “When promulgating new regulations, an agency must consider alternatives ‘within the ambit of the existing [policy],’ but it need not ‘consider all policy alternatives in reaching [its] decision.’”
https://cis.org/Fishman/Bidens-DHS-Deception-Without-Hint-Shame
