Justice Scalia Makes Mathematically Challenged Attack On Obama’s DREAM Initiative

As ThinkProgress previously explained, today’s majority opinion striking down much of Arizona’s harsh immigration law SB 1070 includes several passages suggesting that an Obama Administration initiative allowing undocumented college students and veterans to remain in the country is lawful. In a dissenting opinion joined by no other justice, however, conservative Justice Antonin Scalia takes a swipe at President Obama’s immigration policy:

After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. If an individual unlawfully present in the United States

“• came to the United States under the age of sixteen;

“• has continuously resided in the United States for at least five years . . . ,

“• is currently in school, has graduated from high school, has obtained a general education develop­ment certificate, or is an honorably discharged veteran . . . ,

“• has not been convicted of a [serious crime]; and

“• is not above the age of thirty,” . . . .

The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonen­forcement program envisions, will necessarily be deducted from immigration enforcement.

The Obama Administration justifies its new policy under a doctrine known as “prosecutorial discretion.” Because Congress has not appropriated enough money to deport every undocumented immigrant in the country — the $285 billion cost of doing so adds up to more than six times to Department of Homeland Security’s entire annual budget — the executive branch has the authority to decide how to use its limited enforcement resources by focusing on undocumented immigrants who commit serious offenses and shifting resources away from college students and veterans.

Scalia’s dissent essentially claims that the Obama Administration’s invocation of prosecutorial discretion is a sham because their new immigration directive would also cost money to implement. Scalia would have done well, however, to actually crunch some numbers before making this claim.

Although it is true that the administration’s directive requires immigrants to “pass a background check” and undergo a “case by case” examination of their circumstances before they can take advantage of the new policy, such review will cost only a fraction of how much it would cost to round up, detain, process and deport each of these immigrants. As a Center for American Progress report explains, it costs an average of $18,310 to apprehend a single undocumented immigrant, $3,355 to detain the immigrant while they are facing removal proceedings, $817 to conduct the proceeding itself and another $1,000 to actually deport the immigrant to their country of origin — for a total cost of more than $23,000 for each college student or U.S. military veteran removed from the country.

Private companies, by contrast, offer criminal background checks for as low as $34.95. Federal employees undergo somewhat more expensive screening — those background checks start out at $125 — but even top secret clearances only require $4,000 to conduct. In other words, even if every single person eligible for relief under the Obama Administration’s directive were subjected to the same rigorous screening process required of top security officials who handle information that would cause “exceptionally grave damage” to national security if it became public, that would still cost about $19,000 less per immigrant than the cost of rounding up and deporting undocumented students and veterans.