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.


Tuesday, February 21, 2017

The Idolatry of Safety

I hear repeated promises from the President that he is going to keep us "safe."  These promises are usually preceded by a description of just how fearful the world is.  Muslims want to kill us. Immigrants are pouring in over the borders.  Inner cities are disasters of slums and violence.

The most common objection I see to admitting refugees to the U.S. is, how can we be sure they are not terrorists?  Are we safe?  Despite numerous factual descriptions of the exhaustive vetting processes that refugees go through, the President still prefers the lie, going even so far as to say recently that refugees are "not screened" before they are admitted to the U.S.  Nothing could be further from the truth, but my point will not be to describe the vetting process.  That is already well documented in other sources (for those with eyes to see and ears to hear).

Rather we should ask, why is guaranteed safety the pre-requisite for admitting refugees?  Is there any act of compassion that doesn't involve some degree of risk to the one showing compassion?  Could the "Good Samaritan" be sure that the injured man in the road wasn't really some kind of trap to rob or kill him?  Or that the man he helped wouldn't take all his money the first chance he had?

If we have to be 100% guaranteed that no refugee will ever turn terrorist before we admit any in, then we have elevated our safety to our highest moral goal.  It becomes our object of worship.  Certainly we can never give such a guarantee any more than we can guarantee that none of the 4 million children born in the U.S. each year will grow up to be a serial killer.  And the odds of being killed by one of those native born is substantially higher than the odds of being killed by a refugee or any other immigrant.  If assurance of safety were our only goal, perhaps a policy of mass infanticide would be in order -- like Herod's plan to eliminate the perceived threat of the newborn Christ.  But, of course, we must abandon such an immodest proposal.

Showing compassion and humanity to refugees is not only part of our international obligations as a country, but it is also part of the moral and just obligations of any country, especially any country with the resources with which we have been blessed.

Sometimes doing the right thing has a cost.  That's not to say we shouldn't do our best to review and vet immigrants and refugees, but to hold off on humanitarian aid purely because of some amped up and unfounded fear is wrong.

I suggest that the burden of proof is not on me or my government to prove that all refugees are safe.  I think the burden is on the anti-refugees to prove that our guaranteed safety is a higher good than our duty to act justly.

In the movie, "Open Range," Kevin Costner and Robert Duvall as two cattlemen, are trying to enlist the aid of some of the town's people in resisting an evil rancher baron and his henchman.  One farmer has two young sons and tells Kevin Costner,

"I didn't raise my boys just to see 'em killed."

To which Kevin Costner replies:

"Well, you may not know this, but there's things that gnaw at a man worse than dyin'."

I'm praying that our treatment of refugees and immigrants in the coming administration will gnaw at us enough to outweigh irrational fears for our own safety.

Sunday, February 19, 2017

Forgive us our trespasses, as we forgive those who trespass against us.

I cringe when I see Melania Trump reading the Lord's Prayer at her husband's recent rally in Melbourne, FL.  Not because she seems utterly unfamiliar with it, and not because I have anything against the Lord's Prayer, or Melania for that matter.  But because this administration's policies are utterly at odds with the content of the prayer.  The crowd cheers wildly because, I suppose, they think someone is standing up for Christianity by reading the prayer.  This is the worst kind of civil religion.  It is, as Paul says to Timothy, "having a form of godliness, but denying its power."  2 Tim. 3:5

How cynical for this administration to issue just this weekend the most draconian enforcement priorities I've ever seen against immigrants (affecting children, asylum seekers, parents, children, and spouses of U.S. citizens, spouses of soldiers, etc.), and then read:

"Forgive us our trespasses, as we forgive those who trespass against us."

Forgiveness is a Christian virtue, but apparently forgotten when it comes to immigrants -- whom we are expressly told by the Scriptures to treat humanely and compassionately.  Although the use of the word "trespass" in the Lord's Prayer reflects an old English definition of offense, it certainly describes the plight of most immigrants here without legal authorization.  They are "trespassers" desperately looking for a legal solution to their presence here.  And in most cases, contributing much more to our society than they ever take.

No one disputes that criminal aliens should be punished and likely banned from the U.S. (depending on the nature and severity of the crime and other mitigating factors, like family, etc. -- something for judges to parse out).  But this administration treats every immigrant who never had legal status, or had it and lost it, as criminals deserving of the harshest punishment, regardless of family, character, or contributions to the U.S.  The private prison industry will rejoice at their profits.  The poor will cry for relief from their oppressors, like the children of Israel in the land of Egypt.

Note to administration: Please don't read the Lord's Prayer and ignore its content, and then think you are somehow standing up for Christianity.  You are not.

Saturday, February 4, 2017

The Delegitimizing President

In one of his latest tweets, the President commented on an adverse ruling by a federal judge on the President's traveling ban, calling to the judge as this “so-called judge.”  Judge James Robart of Washington is not a “so called” judge.  He is a federal judge appointed by President George W. Bush and confirmed by the U.S. Senate under the procedures laid out by the U.S. Constitution.  He is “so-called” a judge by the legitimate authorities within our country.  To challenge that by implying otherwise is an attack on the democracy.

The President has a nasty habit of doing this – delegitimizing any persons or structures around him that would threaten his supremacy.  Remember during the campaign, when reminded that his opponent at that time, Ben Carson, was a “great doctor,” he responded that he was “perhaps an O.K. doctor.” John McCain “wasn’t a war hero.”  Jeb Bush was “low energy.”  Hillary Clinton was “crooked Hillary.”  Ted Cruz was “lyin’ Ted.” Marco Rubio was “little Marco.”  And don’t forget that his career was born on the multi-year false attack on the legitimacy of President Obama’s birthplace and the documents of his achievements.

All of this had the intention and effect of delegitimizing his enemies as persons because they were possible threats to the reality star turned politician’s ambitions.  In fact, his response to virtually any attack was not to defend or rebut the attack, but to delegitimize the attacker.

More seriously, he also turned his attacks on the media and the judiciary.  The press is constantly referred to as “dishonest,” and “lying,” and “corrupt.”  At one campaign rally, he joked that they should be killed, but he probably wouldn’t do it (although he was thinking about it).  He singled out reporters for criticism, to the point that one reporter had to be escorted out by Secret Service while the crowd jeered and threatened her.  And we all remember how he mocked a disabled reporter because he wouldn’t confirm Trump’s lie about celebrations among Muslims after 911.

When a fraud case concerning his “university” was before a federal judge, the President dismissed the judge (who was U.S. born) as a “Mexican” who couldn’t rule fairly on his case.  Trump later quietly paid $25 million to settle the case.

These attacks could be dismissed as the product of a thin-skinned, ego driven, narcissist.  And they are certainly that too.  But the more nefarious aspect is how the institutions that hold together democracy are weakened and made to appear less trustworthy.


Democracy doesn’t survive without a free press and independent judiciary.   If we don’t trust our institutions, then we will trust some strongman who promises us that “he alone” can save us.  That’s the end of a democratic society. 

Sunday, December 20, 2015

Trump's Revenge Killings "Unsound"

As if torture wasn’t enough, now we target family members?

It’s interesting (and disheartening) to see the progression of moral arguments on the political level in the last few years as related to national security.  Several years ago, the Bush administration actively tried to hide the fact of torture of captives following 911, and then, when exposed, tried to define what they did as not torture.  Because, after all, who supports torture?

Turns out, in an election season, lots of people do.  Now, politicians routinely advocate the use of torture “to keep America safe,” regardless of how doubtful that proposition is from a cause and effect analysis.

Now, Donald Trump wants to take it a step further.  We should target and kill the family members of suspected terrorists.  He thinks, without any evidence whatsoever, that this will make them think twice about a suicide bombing.  It seems to me to be a little ridiculous that a person about to kill himself and others would think twice about surviving family members.  After all, the San Bernardino terrorists left behind a six month old child.  Does Donald Trump want to kill that child now to show the terrorists that we are serious?  How does that not just inflame more acts of terrorism?

What’s next?  Should we put terrorists’ heads on stakes around the capitol as a warning?  This kind of barbarism is not (or should not be) American.  We want the world to look at us as champions of human rights, not the biggest bully on the block who is willing to violate every ethical principle to get what it wants.  When we present the Donald Trump image to the world, he thinks they will see us as tough and uncompromising.  I think they will see us as hated enemies of human rights and humanity.  Any thought of cooperation from the world community on rooting out terrorism will disappear and Donald Trump will become a poster child for jihadist recruitment.  His policy is not only morally repugnant, it is stupid.

The Donald Trump school of security reminds me much more of a mafia don than a U.S. President.  Or perhaps, Marlon Brandon’s character in the movie, Apocalypse Now, who asks,  “Are my methods unsound?”  Yes, they are, Mr. Trump.  Wildly, disgustingly unsound.

Friday, February 27, 2015

Who Cares about Security?

In the current debate over funding of Homeland Security, both sides are predictably accusing the other of putting the nation’s security at risk by refusing to cooperate with the other side.  Without an agreement, funding for Homeland Security, which guards our borders, processes immigration benefits, etc., will be at unavailable.

But look at what is below the funding debate and ask which path is more secure.  The President issued an executive order deferring deportation for certain non-criminal long term residents without legal status, but with strong relationships in the U.S. or strong equities for being permitted to remain (e.g. immigrants brought here as children without legal status).  Opponents don’t like the executive order granting temporary legal status to those that qualify and won’t pass funding for Homeland Security unless the executive order is rescinded, or at least made incapable of being carried out.  They have also sued to enjoin it from being carried out, and a federal judge in Houston has agreed, although that decision is widely expected to be overturned in due course, and the executive order will take effect eventually.

Apart from the legality of the executive order, which I strongly support (along with over 100 constitutional law scholars across the country), which option makes more sense for the security of the country?  The status quo is a haphazard roundup of whoever may fall into the hands of Immigration and Customs Enforcement (ICE), the enforcement arm of Homeland Security.   This can be anyone from migrant workers to scientists who have fallen out of status, to parents of U.S. citizens (in the hundreds of thousands) to criminal aliens.  It can be recent border crossers to residents with over 10-20 years of peaceful work in the U.S.  In fact, over half of the 11.2 million estimated unauthorized immigrants in the U.S. have been here 10 years or more.

The agencies all recognize that they are simply incapable of removing every unauthorized alien in the U.S., even if they wanted to.  The costs would be in the hundreds of billions of dollars, and the economic damage would be severe.  There has been untold human suffering already in the over two million persons removed from the U.S. during the current administration.  The destruction that action has caused and continues to cause for immigrant and U.S. families, many of whom have mixed status people in the household, is enormous. 

But would attempted continuation of the current failed effort to remove every unauthorized immigrant make us more secure?  Absolutely not.  A deferred action plan, such as proposed by the President, would require people to come forward and register.  They would be fingerprinted and their criminal histories checked.  Those with criminal history would be ineligible and would likely not come forward or would and be referred to ICE for removal.  The administration estimates about 5 million would be eligible for this temporary relief.  They would be allowed to remain temporarily and receive work authorization while waiting for Congress to fashion a permanent solution.  Enforcement resources could then be directed toward those who do not register and those who do not qualify.  In the President’s scheme, this would be criminal aliens, and recent arrivals, including those attempting to cross at the border. 

With all the focus on giving a temporary reprieve for those mentioned above, it is forgotten that the President’s plan would also shift significant resources to apprehending criminal aliens and those attempting to cross at the borders, rather than the more expensive interior enforcement aimed at settled immigrant communities.

Law enforcement groups widely support this kind of plan, as do a large number of mayors of large U.S. cities.  Why?  Because they need immigrant communities to cooperate with them in law enforcement.  If the immigrant communities fear going to the police, or even talking to them, because they might be turned over to ICE, they won’t cooperate, and crimes will not be solved and criminals will not be punished.  Even persons here with legal status are often afraid to go the police because they have a relative living with them that has no status.  If a significant portion of these immigrant communities are permitted to come forward and get temporary legal status, it will allow law enforcement to focus on those who don’t come forward, and those attempting to enter illegally now.   

The executive action is a more secure situation for the nation, and long overdue.  To oppose the executive action because one simply cannot stomach some kind of "executive amnesty" is to value a random, ineffective, but too harsh punishment of non-criminal immigrants over national security.


To be clear, this is not a substitute for congressional action, but until Congress can find the will to act, the President’s executive action is a perfectly sensible, moral, and more secure action to take on behalf of the country.