How to Solve the DACA Dilemma While Still Enforcing All The Laws
- Ensuring equal treatment under the law
There’s been a debate about whether people who have never been in this country are covered under the Constitution. That came up during the many iterations of the Immigration Ban. Since they’d never been here, are they entitled to equal treatment? In many cases, it was decided that they aren’t. If they ARE already here, are they entitled to equal treatment? Well, that depends on whose jurisdiction matters most.
Since Mexican law doesn’t say they illegally left Mexico, unless a judge had said they weren’t allowed to leave, the only jurisdiction in which a law was broken is our jurisdiction. It’s only our laws that were broken. Since we can’t enforce Mexican law or any other law in our jurisdiction, we have to enforce our own. We do have to treat them like any other person who violated a law. That means there needs to be a formal investigation, an indictment, a jury trial, a sentencing, and prison time. If the judge determines deportation is the correct sentence, then he or she needs to ensure this is not cruel or unusual. If they had never come here, they wouldn’t be under our jurisdiction. Whether that’s truly the burden we must meet to begin treating someone the way we treat ourselves is up for debate as it was when we were discussing the Immigration Ban, but in this case, it’s clear we must treat all people the way we treat ourselves. As such, deporting them without a proper jury trial would violate the law, and deporting them after a proper jury trial would not. Allowing the Executive Branch to deport them is simply a violation of the Separation of Powers, which is a cornerstone of the U.S. Constitution. It’s as simple as that.
Minnesota Senator Al Franken brought this up during the confirmation hearing of now-Supreme Court Justice Neil Gorsuch. He was talking about the case of a company that was allowed by law to fire a truck driver for leaving goods unattended in a trailer by unhitching the cabin–that’s the front end where the driver sits–and driving away in said cabin. I agree. Upon further research, his employment contract says you can’t do that. Furthermore, the plain meaning rule says that the courts are permitted to interpret laws. Again, the separation of powers states that that’s the Legislative Branch’s job. That’s their job and their sole right. Judges pass judgment. They don’t change laws. Otherwise, any one branch may get too much power and therefore subjugate the efficacy of the actions of the other two. Agreed. Totally.
There is something built in that is rather amorphous and undefined that is called the absurdity clause. What is meant by absurdity? Is it similar to “I can’t define it, but I know it when I see it?” Is it a catch-all, like the founders saying ‘Oh, I don’t know, it’s late. I wanna go home so let’s just say, if we missed anything and you find something ridiculous, you have free reign over this one?” I don’t know what they were thinking, but this clause simply states that the courts are not allowed but are REQUIRED to interpret the law when the literal wording of the law would “lead to an absurd result.” Okay, so now we’re getting somewhere. Well, sorta. Still don’t know what “absurd” means. However, the result in the case of the trucker is that he would have died if he didn’t violate his contract. Furthermore, keeping the trailed attached to the cabin, in the trucker’s professional opinion, would have killed someone else because the brakes were failing, which is no good on a cold Minnesota night on an icy highway with other vehicles a tenth the truck’s size. Since contracts can’t supersede federal laws, especially those prohibiting actions that lead to death, the contract’s clauses that state there is punishment for leaving the goods unattended become void when the trucker’s life is in danger. Since the contract didn’t specify what would happen in cases where the contract itself can’t be legally valid, the courts have a legal REQUIREMENT to interpret this ‘loophole’ for themselves.
In the case of DACA children, there are absurd results all over the place. Representative Steve King said that these children should sign affidavits attesting to the fact that their parents violated the law as a way for the children to earn their freedom. This seems absurd, but is it? Honestly, I don’t think it’s necessary to consider because, again, there are other situations that supersede it. This means there are other situations that are more important. You don’t have to agree what to do in those situations, but within our jurisdiction, our own laws tell us which situations are more serious.
These situations include the children being too young to be held responsible for their actions and the effects of their being orphaned if they didn’t cross the border with their parents, among other situations. You may not have to include that our laws support keeping families intact if you decide that those who stay in Mexico aren’t covered under our laws because, as discussed in the first bullet point, they’ve never even been here.
In short, if any of these situations would have likely caused harm to the children, then that takes precedence. Yes, Representative King’s idea could be tantamount to cruel and unusual punishment, but we don’t even have to look at it. Thankfully, we can skip right over that.
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Thank you for following my blog and welcome to the fence jumpers. @sheilamgood at Cow Pasture Chronicles
I’m unsure on the exact objective of this post. For the record I do support allowing DACA kids to stay and so does President Trump for that matter. I have not read all your posts to know exactly where you stand but I’m guessing you’re not a Trump supporter?
I think you were right on point when you wrote above, “We’re all hung up on the morality of the issue, and we’re missing the fact that there is something already on the books that tells us exactly what to do.” I would call this, “Rule of Law” … we are a Nation of Laws not of ideals of the majority. DACA was an attempt to undermine rule of law because it felt like the right thing to do.
Obama himself said this was not possible on many occasions but went ahead and did it anyway, creating a false sense of security for these already troubled community. This was a travesty and Trump promises to fix it.
The issue of concern for many Americans, that was grasped by President Trump early on, was “The Wall” … the Resist Movement does not seem willing to support a border wall. Do you see supporting a wall as a legitimate trade-off for DACA?
Millions of Americans believe a wall is required to provide security and validity to our sovereignty as a Nation. Trump won the Election running on that issue. So resisting the wall is an attempt to ignore the voters and those Americans who believe our core values as the land of Liberty is being undermined by ILLEGAL IMMIGRATION.
There is a purposeful deception driven by the resist movement to blur the lines between immigrants and illegals, a distinction understood with total clarity by informed Americans. I hope your resist efforts are to resist the ideologues who will kill DACA in an effort undermine American Sovereignty by refusing to support a Wall.
The wall issue has won the political argument on many occasions, but has yet to manifest. This link may prove helpful in learning more about this nuanced and yet highly emotional subject. https://www.usamnesty.org
I hope this comment makes sense and I am eager to get your feedback too. Thanks!
Thank you, Jay. I appreciate your comment. While I understand your point of view, please note that the rule of law does not match a crime with a punishment. It matches a criminal with a punishment.
Given that the Dreamers were forced to come here, they are not criminals. No crime was perpetrated by them or against them. They’re displaced, and we’re settling them here because they want to be here. If they didn’t want to be here, maybe another country would accept them.
This is how our country was founded.
I agree entirely with your reply … You ignored my questions which are pertinent to the issue. Can we get a wall as part of Immigration reform including DACA?
That’s a different analysis. I don’t know whether each party can come to a compromise. Compromise, indeed, is something of a taboo in some cases. If you ask me, I’d like compromise.
I don’t want a wall, but my only concern in that regard is the cost. I don’t think the wall will do anything, and I’d like to save money for something that might work.
In the interest of brevity, I’ll be straightforward: no, I don’t think we’ll get a wall as part of DACA Reform. I think we’ll continue to get nothing for quite a while.
Thanks for the follow-up comment. Compromise has become a naughty word as we become more and more polarized. I am very happy to hear you’re open to compromise to advance the DACA decision. I will be very upset if Democrats hard-line resist on this important issue that needs compromise or if the Republicans hard-line against DACA.
I am a centrist and more pragmatic than the extreme positions taken by both sides of the isle in the establishment of Washington DC. Our forefathers set up our system to be difficult to change. Requiring compromise or genuine innovation that is supported by the majority, who are willing to work the system over time to create the progress we demand as a society.
I do understand your concerns about costs on the wall. But I also think a wall is a reasonable compromise because it will slow down Illegal crossings and drug trafficking, and it will deter future administrations from pursing an open boarder policy by undermining enforcement as both the G.W. Bush and Obama Administration did.
Clinton was a much better leader on the immigration front. I believe the majority of Americans will support a compromise. I am hopeful that Trump and the Democrats can make this happen and not be thwarted by either side because of politics.
DACA is unrelated to the “wall”.
If the author doesn’t mind be jumping in here; in response to “Millions of Americans believe a wall is required to provide security and validity to our sovereignty as a Nation”.
Possibly, but that doesn’t imply much of anything. What is meaningful is that a substantial (63% +) majority of Americans adamantly oppose the wall. It’s nothing more than a grossly expensive red herring meant to continue Trump’s unfounded, xenophobic dogma.
Trump didn’t win the election solely upon “the wall”, rather an entire collection of ultra-conservative rhetoric and stated “positions”.
We are indeed a nation of laws and we can both agree that we must have law to continue as a society. However; laws without mercy and with blind obedience/intolerance is life in nothing more than an authoritarian, fascist state. “Authoritarianism refers to a governmental or political system, principle, or practice in which individual freedom is held as completely subordinate to the power or authority of the state”. Law must be merciful, which is precisely why the courts/juries are given latitude in decisions and findings.
Blindly enacting laws is just as dangerous as blind adherence to law. When we seek and reach that state, we’re no longer remotely qualified to be the moral leaders of the world, or even to be considered humane.
Blind adherence to the law is not always the right path to take, and in the case of DACA, “right/decent” is not turning our backs on people who had no choice in their circumstance, sending them to a world completely foreign to them, one they know little, if anything about, just to satisfy over-zealous adherence to the law.
Bob says 63%+ “adamantly oppose” a wall. According to whom? I’ve also seen polls that say 80%+ strongly support a wall. Unless you’re polling the entire nation, election night 2016 should have taught us that polls from either side are at best a springboard for discussion. Polls, just like statistics, can very easily be made to lie.
As for compromise, it’s good TO A POINT. There must be some things in life we aren’t willing to compromise. For Americans especially, that list should start with the Constitution. The fact that politicians of both parties now, and other parties previously, and all three branches of our government, have so willingly twisted and distorted the Constitution for their own gains and desires is one of the main reasons we find ourselves in the predicament we’re in.
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You are so right on about this. It’s not the children’s fault that their parents came here illegally . We don’t know what they went through in their own countries to make them risk every thing to come here. As for Trump, doesn’t he look in his mirror. He married two women who may or may not have come here legally and had children by them. Are they going to be sent back to Slovenia and the Czech Republic ? Just asking. Excellent post.
Thank you for comment. When I’m not blogging, I’m working on a couple different books, and one is fiction. Even with a fiction writer’s mindset, I can’t come up with any scenario in which the vast majority of these children could’ve stayed in their home country without their parents. Trump can talk all he wants, but these kids need our help, and they are welcome to stay with me if they’d like.
I’m glad you liked my post. I hope I added value to your day, and I hope you pass that on to others in your life.