Tuesday, September 5, 2017

Is DACA Unconstitutional?

Note that this same President who claimed he had unfettered discretion to ban Muslims from the U.S. by executive order, now claims that the former President did not have the same constitutional power to exercise prosecutorial discretion on behalf of dreamers. In fact, over 100 constitutional law professors signed on to a letter at the time affirming the constitutionality of the DACA action. [legal argument at https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/LawProfLetterDACAFinal8.13.pdf]. Article at https://www.dailykos.com/stories/2017/8/16/1690348/-100-law-professors-to-Trump-No-question-DACA-is-constitutional.
Look at it this way. If you are stopped for speeding, does the officer sometimes not write a ticket but give you a warning instead? That is an exercise of prosecutorial discretion and it is available in all areas of enforcement. When Pres Obama decided to prioritize removal of some aliens and not others, that is within his authority. If Congress doesn't agree with it, they can pass laws and appropriate the necessary funds to accomplish the desired result. Since they have not appropriated the necessary funds to remove everyone here without authorization, the enforcement bodies have to prioritize their enforcement actions. Surely, no one thinks that deporting non-criminal immigrants brought here as children should be our highest priority.
It is also sadly ironic that the President who seeks security in the Constitution for his inhumanity is the same person who gladly pardoned convicted criminal, Sheriff Joe Arpaio, whose crime was defiance of a court order pertaining to his unconstitutional treatment of unauthorized aliens. If it is the Constitution you care about, you don't show it by pardoning someone (even before sentencing) who proudly violated it.

Monday, September 4, 2017

Rationale for DACA

Now is a good time to remind people briefly of the reason behind DACA (Deferred Action for Childhood Arrivals).  The “Dream Act” (not DACA) was first introduced into Congress in 2001.  Its purpose was to provide a legal status for non-criminal immigrants brought here as children.  It bounced back and forth over the years in various pieces of legislation, but never passed, although each President at the time said he would sign it if it got through Congress.

President Obama also pushed for immigration reform legislation that would include some version of the Dream Act.  When it became clear that this was not a legislative possibility during his tenure, he created something less, called DACA, by executive order in 2012.  The Dream Act would have provided permanent residence and eventually citizenship for persons who could benefit from it.   The President could not go that far by executive order, so DACA instead creates a kind of temporary status for its beneficiaries.  Their deportation is deferred if they qualify, and that “deferred action” gives them the opportunity to apply for work authorization, obtain driver’s licenses, go to school, etc.  It’s not permanent, and it can be revoked at any time by a subsequent executive order of the President.

The rationale for this action?  Persons brought here as children and remaining in the U.S. cannot be charged with having committed an illegal act by entering the U.S., and yet they have no legal status and can be deported at any time.   They have long ties to the U.S. and should be given the opportunity to remain and prosper and, in many cases, they have virtually no ties to (and may not even speak the language) of their home countries.  It certainly cannot be regarded as healthy for our country to have children grow up here, only to discover that they have no opportunities and no hope for success in life because of their legal status.

Since DACA was passed, almost 800,000 “dreamers” have applied for the temporary protection.  Of these, the great majority have jobs and many are in higher education.  In January, the libertarian Cato Institute -- which promotes limited government -- estimated that terminating DACA and immediately deporting those enrolled in the program would cost the federal government $60 billion, and would reduce economic growth by $280 billion in the next 10 years.

There is no valid economic or humanitarian argument for ending DACA.  To end DACA now does not comport with American values toward immigrants and cannot be said to be “patriotic” in any sense of the word.  It only amplifies our most base instincts of fear toward the “other” and contributes nothing to making the country great.  Immigrants, on the other hand, contribute much to the success of the U.S.  I need not go into the multitudes of examples.  

The threat to revoke DACA appears even more cynical when we consider that the President just pardoned convicted criminal, Joe Arpaio, who terrorized immigrants for years as Sheriff of Maricopa County, defying court orders, and shaming his office with unconstitutional enforcement actions.  The President said he was "just doing his job."  He was not.  His oath is to uphold the Constitution and he failed criminally in that.

Although President Obama deported more immigrants than any president before him, he did establish a priority for removal.  This had to do with the recognition that only about 400,000+ immigrants could be removed each year, given our enforcement apparatus (include courts, officers, constitutional protections, etc.).  But if there are 11 million unauthorized immigrants, that means it could take 20 years or more to remove everyone (and that is supposing no new unauthorized immigrants arrive and the maximum amount can be removed each year).  The solution to the problem is comprehensive immigration reform that creates a pathway to legalization for long term non-criminal aliens.  This would allow them to come out of the shadows and live productive lives contributing to the U.S.  It would also make it easier to focus on criminal aliens.

But because we have failed to pass immigration reform (it will happen one day), that leaves us with the question of who should be our priority for removal?  Under President Obama, that meant that criminal aliens and recent arrivals should have the highest priority for removal.  Those with no criminal convictions and with long ties to their communities should be deferred in their removals.  The President could not grant them citizenship or permanent residence, which would require congressional action, but could favorably exercise prosecutorial discretion and focus the enforcement apparatus elsewhere.  It brought some order to a system that seemed to act randomly to pick the lowest hanging fruit, deporting some immigrants deserving of discretion, and ignoring others that should be removed.

It is analogous in my mind to saying that with our limited police force, it makes sense to focus more of our efforts on solving and preventing violent crime, and less on traffic tickets. 
When President Trump took office, one of his first actions was to remove the priorities for removal established by President Obama.  This meant that everyone without legal status was a priority for removal.  The result, as could be expected, was that deportations over all are up, but removals of criminal aliens are not.  Every day we see stories of non-criminal immigrants that have been here for 30 years or more, with U.S. citizen children and spouses, who are suddenly sent back to their home countries and ripped from their families in the U.S.  The fear in the immigrant communities is palpable.  They want nothing to do with law enforcement of any kind, because it could lead to removal from their families and the lives they have established here.

DACA represented a step even further than mere prosecutorial discretion in that it sought to couple the discretion (aimed at the most sympathetic group of unauthorized immigrants) with an eligibility for work authorization and a temporary confidence that the beneficiaries could pursue lives of excellence here.  If that goes away through executive action, and Congress does not act to protect the “Dreamers,” we will be witnessing first hand a gross act of injustice by our government.