I have researched the foundations of Secretary Kobach’s comments and recommend them as further action the President could take to resolve the crisis at the border without legislative action, but has not:
1. Issue a Section 212F Proclamation using the authority vested in the President and expressed in a previous proclamation on August 4, 2011. That Proclamation stated, “NOW, THEREFORE, I, BARACK OBAMA, by the authority vested in me as President by the Constitution and the laws of the United States of America, including section 212(f) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1182(f)), and section 301 of title 3, United States Code, hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of persons described in section 1 [DESCRIBE CRISIS POPULATION] of this proclamation would be detrimental to the interests of the United States. I therefore hereby proclaim that: The entry into the United States, as immigrants or nonimmigrants, of the following persons is hereby suspended: [DESCRIBE CRISIS POPULATION]
2. Declare that the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 is being misinterpreted by those who seek to treat the unaccompanied minors at the border as victims of human trafficking. The protections and services offered by that law were for a specific class of exploited persons who are manipulated and controlled by human traffickers. The unaccompanied minors at the border were sent by their parents and are arriving under no duress. Therefore, the provisions of the Trafficking Victims Act do not apply to these migrants.
3. Deputize to the Border Patrol Service and deploy local and state authorities in the southwest border region to assist the Border Patrol Service under 8 U.S. Code § 1103 - Powers and duties of the Secretary, the Under Secretary, and the Attorney General paragraph (a), (10), which authorizes the Secretary of Homeland Security to:
(10) In the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize any State or local law enforcement officer, with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving, to perform or exercise any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon officers or employees of the Service.
Secretary Kobach was a Professor of Constitutional Law at the University of Missouri. He received his Bachelor of Arts degree with highest distinction from Harvard University. In 1988, the British government awarded him a Marshall Scholarship. He received his doctorate in Political Science from Oxford University and a Juris Doctorate from Yale Law School. He was counsel to the Attorney General of the United States during the George W. Bush administration.