In Charles Dickens’ classic, Oliver Twist, when Mr. Bumble is told that the law presumes he controls his wife’s actions, declares that “the law is an ass.” Similarly, the current law which provides that children who are brought to this country illegally by their parents should be deported back to the country where they were born is an ass. So are the 15% of Americans who think these young people should be deported. And there is no question that it is shameful that Congress has not already acted to fix this law. But fixing the law through executive action, as President Obama did, pits two of our fundamental principles against each other.
The first, of course, is fundamental fairness. We do not hold children guilty for the sins of their parents. Our law, in fact, does not even hold children guilty for crimes they commit. Make no mistake: deporting a person to a country they have never seen and where they do not speak the language; ripping them from friends, family, their school or job, their community; is an unthinkably harsh punishment for a crime they did not commit. That is why 85% of Americans oppose their deportation.
The second principle is incorporated into Article III, Section 3 of the Constitution which provides that the president “take care of that the laws be faithfully executed.” Most public officials are required to take an oath solemnizing the commonsense notion that executive officers are supposed to enforce the laws passed by the legislative bodies and not make up their own or decide which laws should be enforced. To do otherwise violates our principle of the separation of powers.
Of course, the concept of prosecutorial discretion is firmly established in our law. In fact, the principle is mandated by the ethical rules for prosecutors to “seek justice, not merely to convict.” The simplest example of prosecutorial discretion is when a police officer decides to issue a warning instead of a speeding citation. I doubt many of us would accuse the officer of violating his oath of office or the separation of powers for issuing the warning; especially if we are the speeder! But, I suspect most would feel differently if our local police chief announced he had decided that speeding laws were unnecessary and that the police force would no longer enforce them.
I do not fault President Obama for issuing DACA in the face of Congress’ failure to act. No, any fault for this situation must be laid directly at the feet of our worthless, cowardly Congress who will not stand up to partisan extremists to solve this problem.
I have no doubt that President Trump’s decision to rescind DACA was a callous appeal to his base. If he really “loved” the young people involved he would have offered and pressed for legislation to address the issue and not just pass the hot potato to Congress. But irrespective of his motives, he is right that Congress should act.
Even President Obama conceded DACA was a stopgap measure. While DACA was a welcome life ring for these young people, it was never true security. Congress needs to fix this and fix it now; and provide permanent security for those stuck in this legal limbo through no fault of their own.
In a strange irony, President Trump is putting some of his most ardent Congressional supporters between a rock and a hard spot. Trust me, while Republicans in Congress loved to rail against President Obama’s “usurpation” of their power by enacting DACA, they were also enormously relieved they did not have to vote on an issue strongly favored by the districts but largely opposed by their primary voters. And they know all too well that the first of these DACA young people that is actually deported with every news outlet in the world covering it live every step of the way, will be the end of the Republican majorities in both houses of Congress.
Here’s the bottom line. 85% of Americans agree that those brought here as children illegally should not be deported. If Congress cannot act and continues to allow 15% of the country to impose its will on the other 85% of us, we need to fire the whole bunch and start over.