DACA and the Rule of Law

In its introductory section on Deferred Action for Childhood Arrivals, or DACA immigration policy, Wikipedia closes by citing the findings of several studies – to wit, that DACA decreased the number of "unauthorized" immigrant households living in poverty and that it increased mental health outcomes for those households.  According to "most economists," DACA benefited the economy.  (What other economists say on this point is not mentioned here or elsewhere in the Wikipedia entry.)  And "there is no evidence that DACA-eligible individuals are more likely to commit crimes than any other person in the US."

In other words, if an "unauthorized" alien benefits from entering the U.S., and, "according to most economists," the economy benefits as well, and the alien commits no more crimes than average (not including the crime he committed by illegally entering the country), the law that prohibited his entry should be ignored.

To put it in another context, say a man "without authorization" kills another man.  Before we assess any penalty, we must first assess whether the loss of the victim is a net positive or negative for society.  Did he have a job, or was he on welfare?  (Was he Democrat or Republican?)

Such reasoning puts economic considerations above the law.  It puts materialistic concerns above concerns for justice.  Some, no doubt, would deny this.  They would point to some "unauthorized" alien minor and contend that the minor did no wrong, and so, were he deported to his parents' nation of origin, that would be the injustice.

The problem with this is that the people whose laws were violated did no wrong, either.  So why should they be prevented from enforcing their laws?

There is a third party to consider as well, comprising those seeking to immigrate into the United States legally.  To the extent that illegal immigration occurs, there is less opportunity for these prospective legal immigrants.  They did nothing wrong, either, yet they are the ones receiving the real punishment.  Do we, on account of "economic considerations," forget about them?  Are they somehow less economically beneficial to the United States than illegal – I mean, "unauthorized" – aliens?  Would they be less likely to assimilate and to become law-abiding citizens than those who, from the very start, violate the laws of the United States without consequence?  Obviously not.  Obviously, the opposite is true.

But the illegal aliens are here, and the ones seeking to be legal immigrants are not here.  Possession, they say, is nine tenths of the law.  But there does remain that pesky other tenth, which is guided not by possession (or economic considerations), but by the demands of justice.

If we look to justice, it gives no answer, for the minor is not to blame, the laws and the people who enacted them and want them enforced are not to blame, and those seeking legal entry are not to blame.  So who is to blame?

First, the parents are to blame.  One can understand and be sympathetic toward their crime, but it is a crime nonetheless.  Failing to deport a minor because the minor himself is not to blame rewards the crime.  Can a nation that professes to honor the rule of law reward those who break it?  Can a nation that rewards the breaking of a law hope or expect its immigrants to assimilate into a law-abiding a society when, through that very process, it demonstrates its disregard, if not contempt for the law?

Second, those Democrats who, for perceived political purposes, facilitated such illegal entries are to blame – as are Republicans who, fearing political backlash, did not oppose such measures.  Given the demands of politics, the role of both in this matter may, like that of the parents, be understandable. 

The one who really merits the greatest blame and condemnation is Barack Obama.  This is not because he was a Democrat seeking to bring in more Democrat voters – coming from a partisan Democrat politician, this is understandable.  But Obama was more than a Democrat – he was the president, sworn to "preserve, protect, and defend the Constitution of the United States."  Under the Constitution, it is clear that the enactment of laws lies with the Legislative Branch of government.  It is also clear that immigration policy falls within such purview.  (If it doesn't, what does?)  Nonetheless, when the legislation Obama desired failed to pass Congress, Obama "enacted it" through executive action.

What can be passed through executive action can be removed through executive action, particularly when that action is unconstitutional.  Obama created a legal status for immigrants, but it was a status that could be removed with the stroke of another president's pen.  Obama surely did not think that would happen.  He surely believed he was creating a situation that, politically, would be hard to undo.  (Indeed, it is.)  But for this very reason, it should be undone.  If it is not, then, through his abuse of presidential authority to create a situation difficult to undo, Obama has achieved his aim.  He will be rewarded, and a precedent will be set. 

If we are to be a nation of laws, there must be some penalty for the violation of the law.  For this reason, this writer suggests that, as an alternative to full deportation, DACA minors should be required to return, presumably with their parents, to the nation of their origin, but with the proviso that they will have the right to return after four years.  Should they return, it will be as permanent residents, not as citizens.  They will, under the laws, be treated the same as American citizens, but they will not have the right to help determine laws; they will not have the same rights as those immigrants who have come to this nation legally from the start.

Unless there is some price to be paid for the violation of law, sufficient to deter, there is no law. 

Bert Peterson is the author of a newly released and timely e-book, Does Our Banner Still Wave? The NFL Protests and Trump's Opportunity.

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