Lawyer Says Immigration Military Recruitment Legislation Unnecessary

A defense budget amendment intended to open the military up to undocumented immigrants brought to the U.S. as minor children may have died by a House vote last week, but a veteran immigration attorney said legislation is unnecessary because the Defense Department already has that authority.

"The President already has statutory authority to let them enlist, or more precisely, his service secretaries have the authority," Margaret Stock told Military.com in a May 18 email. Stock, an Army Reserve lieutenant colonel who has taught at West Point and is a MacArthur Foundation Fellow, called the failed amendment to the 2016 National Defense Authorization Act a "symbolic effort."

Rep. Ruben Gallego, D-Arizona, drafted the amendment that would have directed Defense Secretary Ashton Carter to review the effect to military readiness of opening enlistments up to undocumented immigrants now staying in the U.S. under President Obama's Deferred Action for Childhood Arrivals executive orders.

These immigrants are typically referred to as DREAMers - from the acronym for Development, Relief, and Education for Alien Minors Act, proposed legislation to give the foreign-born but American raised men and women a path to citizenship.

Under Obama's 2012 and 2014 Deferred Action for Childhood Arrivals - DACA - orders, these individuals were granted renewable work permits and exemption from deportation.

Gallego's amendment went to the House floor after being passed out of the House Armed Services Committee with bipartisan support.

Rep. Mike Coffman, R-Colorado, who tried unsuccessfully last year to pass legislation enabling undocumented youth to join the military as a path to citizenship, was among committee lawmakers who supported Gallego's amendment.

"There is no higher expression of citizenship than serving your nation in uniform. I am fighting every day to give DREAMers the same chance I had to serve this country," Coffman said at the time.

But the measure failed on the House floor, criticized by some on the GOP side as an amnesty program for illegals.

The White House responded saying the partisan vote hurt military recruitment and readiness.

"It is disappointing that House Republicans voted against a bipartisan measure to allow Dreamers to serve our nation and defend our freedom. Allowing Dreamers to serve represents an opportunity to expand the recruiting pool, to the advantage of military recruitment and readiness," the White House said in a statement.

About the same time former Secretary of State Hillary Clinton, who is running for president, came out in favor of the idea, which is certain to move the debate from Capitol Hill to the campaign trail.

Immigrants and military enlistment

Legal permanent residents - Green Card holders - may enlist and be fast-tracked to citizenship. Also, individuals with specific skills may come to the U.S., join the military and gain U.S. citizenship through the Military Accessions Vital to the National Interest (MAVNI) program. Its focus is principally on medical skills or fluency in specific languages.

Obama's DACA orders made no mention of military service as a path to citizenship.

Two years ago, then-Defense Department General Counsel Jeh Johnson issued an opinion saying that immigrants allowed to stay and work in the U.S. under DACA must qualify for the MAVNI program in order to enlist, Stock said.

The majority of DACA-eligible immigrants do not qualify for MAVNI, she said.

Stock said the military may enlist undocumented aliens under 10 United States Code 504(b)(2), which offers an exception to requirements that recruits must be a U.S. national or permanent legal resident.

The law states the services "may authorize the enlistment" of people who are non-citizens or legal residents if they determine "that such enlistment is vital to the national interest."

Stock said this is the same authority used to create the MAVNI program.

"There's nothing in there that restricts 'vital to the national interest' only to people who are doctors, or who speak certain foreign languages. Anyone … can fall into that language," she said. "And the language 'vital to the national interest' has never been interpreted by the courts, and there's no legislative history-so it means whatever DoD says it means. That means it says whatever the President says it means."

Larry Korb, a Senior Fellow at the Center for American Progress in Washington, DC, said there is no reason to bar the group of immigrants from military service and citizenship.

"If they meet all the standards for education and score well on the [military entrance exam] and they're physically fit, why not let them in?" Korb said. "We've done it before. What better way to prove your loyalty to the country than fight and die for it?

"Because they know, as things are, their chances of getting involved [in combat] are pretty good," said Korb, who was former assistant secretary of defense for manpower, reserve affairs and installations during the Reagan administration.

David Inserra, a research associate at The Heritage Foundation in Washington, said the arguments being used to justify opening military service to this group of immigrants makes no sense given the military has been shrinking.

"You say you don't need people in the military so you're cutting folks, but at the same time you're saying you really need people, so you [want] these tools to bring people into the military and give them citizenship," he said. "These things don't make sense to me."

Also, he said, there are folks who are legal immigrants, who should be able to take advantage of these programs.

"If they have followed the rules and done everything right and they want to use these various tools to join the military, then I think that is entirely appropriate. If they have skills which are absolutely, truly needed," he said.

-- Bryant Jordan can be reached at bryant.jordan@military.com.