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.