Tuesday, January 16, 2018

My Response to Congressman Sam Graves about DACA


Thank you for your response to my email.  As an immigration lawyer and one who works with immigrants on a daily basis, I feel the obligation to rebut some of your assertions below.  First, my email, I believe, was in support of the Dream Act, but your response referenced DACA.  They are two separate things.  I support both but, of course, we wouldn’t need DACA if a Dream Act is passed.  I hope you will consider it favorably.

Regarding DACA, you state, without authority that it is unconstitutional.  That is your opinion, but it is not well supported.  As you know, under our form of government, it is the U.S. Supreme Court that has the final word on whether an action of the administration, or Congress, is constitutional.  To my knowledge, no court has determined it to be unconstitutional and in fact, claims of unconstitutionality have been rejected by the courts that have considered it.  The issue has not reached the U.S. Supreme Court.  “DAPA,” that is protection for parents of “Dreamers” was blocked by a lower court (in a split decision), although not on constitutional grounds, and the U.S. Supreme Court split 4-4 on the issue, letting the lower court decision stand.  Not so with DACA.   In fact, more than 100 legal scholars signed onto a letter at the time DACA was established in 2012 stating their opinion that it was constitutional.  Very similar actions have been taken unilaterally, by executive order, by previous presidents to protect immigrants, including George W. Bush and George H.W. Bush, etc.

By their nature, executive orders are unilateral.  That, in itself, does not affect their viability or their constitutionality.  If you think that executive orders by their nature are unconstitutional, then I trust you are carrying that same attitude toward the plethora of executive orders issued by the current administration.  If fact, with the exception of the recent tax bill, very little has been done by this administration with the cooperation of Congress, but very much has been done by “unilateral” executive order.

So if you oppose DACA, I think you should look elsewhere for justification than your conclusory statement that it is unconstitutional.  And if your opinion as to constitutionality is based on the simple fact that it was done by executive order, you are plainly wrong.

You also cite DACA as a reason for the recent surge of immigrants at the southern border.  I don’t know your sources for this, but it is also wrong.  I’ve personally worked at the southern border with those recent border crossers in our detention facility at Dilley, Texas.  They are overwhelmingly from three countries: Honduras, El Salvador, and Guatemala.  Not Mexico.  In fact, there is a net negative immigration from Mexico.  Of those border crossers, none cite DACA as a reason for coming to the U.S.  They are fleeing horrible, persecution situations in their home countries, and they are seeking refuge in the U.S.  They are, in fact, refugees.  The proof of this is that well over 98% are found, upon examination by asylum officers, to have a “credible fear” of persecution and eligible to present claims for asylum to an immigration judge.   They don’t “sneak” into the country, but present themselves at the border and ask for safety and the opportunity to apply for asylum.  They have the legal right to do that, and we have the legal obligation as a country to consider their plea and treat them humanely as they present it.

In this country, our history and our noble aspirations have been to welcome hard working immigrants that will contribute to the betterment of our country. 

Finally, I don’t doubt the sincerity of your views.  In my experience, however, people take stances such as yours when they agree with the effect it has on people’s lives, rather than on some abstract notion of separation of powers.  Yes, Congress should act on this issue.  Until it finds the courage to do so, I respectfully don’t find your approach to this issue consistent with our history or our values.


Roger McCrummen  ∙  Attorney at Law

From: Congressman Sam Graves [mailto:MO06ima@mail.house.gov]
Sent: Monday, December 18, 2017 3:06 PM
To: roger@mhaf.org
Subject: Message from Congressman Sam Graves

December 18, 2017

Mr. Roger Kent McCrummen
Kansas City, Missouri 64118

Dear Roger:

Thank you for contacting me with your concerns regarding Deferred Action for Childhood Arrivals (DACA). I appreciate hearing from you and welcome the opportunity to respond.

In 2012, President Obama decided to unilaterally order the federal government to stop deporting certain illegal immigrants brought here as children. This policy, known as Deferred Action for Childhood Arrivals (DACA), is cited as one of the main reasons for the surge at our southern border. This program was not only implemented without the input of Congress, but also violated the Constitution in doing so. Only Congress can pass legislation providing immigration benefits to individuals, but President Obama used his executive authority to circumvent the federal government’s legislative body. Simply put, the means by which DACA became law is unconstitutional.

However well-intentioned DACA may have been, I defend the constitutional right of Congress to review and pass legislation. Our country was built on the rule of law and an unconstitutional executive order granting amnesty to illegal immigrants has no place in our legal system. Although we may disagree with this issue, I hope you can appreciate the sincerity of my views as I do yours. 

Again, thank you for contacting me regarding this important issue. Please feel free to call (202) 225-7041 should you have any further questions or concerns about this or any other issue, or visit my website at www.graves.house.gov for more information.



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