This is the same as the trucker example. If the parents leave Mexico, they’re not violating Mexican law. If they don’t bring their children, they might be violating Mexican law by abandoning their children because technically the neglect couldn’t occur if the children didn’t stay there and so jurisdiction may reside in Mexico. Due to an extradition treaty because the United States and Mexico, if the children didn’t go with their parents, the Mexican government could extradite their parents right back to Mexico to face trial for neglect. If the children do go with their parents, then the children are in trouble. Moreover, bringing your children here violates U.S. law because you’re knowingly putting your children in harm’s way by forcing them to break the law and forcing them to end up in jail. That could be depraved indifference or neglect or something else. What matters is that it’s an impossible choice. More specifically, the laws themselves make it impossible for the children to follow the law because they make it impossible for the parents to follow the law. The parents will be charged for bringing their kids, and it’s impossible to NOT bring their kids because they’ll be extradited back to Mexico if Mexican law says you can’t leave your kids behind.
It all rests with the parents. The kids have no way of being on the right side of the law. As such, the laws themselves putting the kids in a situation they can’t follow the law encourages a departure from the plain meaning rule. Since laws must be followed, there must be an ability to follow them. If the laws don’t provide an ability to follow them, then the absurdity clause applies. As such, the courts need to interpret the law. You could call it a loophole. I don’t know. I just know that the kids that were absolutely and immediately dependent on their parents everyday of their young lives had to go with their parents, which means they had to violate the law. The laws didn’t have to consider those kids because they hadn’t been here yet, but as soon as they crossed, they were in our jurisdiction, and as such, our laws must allow a way for them, and everyone, to follow our laws. Given that no such specificity exists, the courts are required to fill that loophole themselves. Given the separation of powers, it’s the courts job to to do this. They must do this. It’s not the executive branch’s job, and even the legislature can’t technically interpret the law for laws that have already been violated. They can rewrite laws, but they can’t be applied retroactively.
In short, the Executive Branch is interpreting the law where the law is not clear, and this is a violation of the separation of powers.
This whole debate about ethics, morality, and the conflict between the rule of law and being a nation with open arms is irrelevant. You can scream about it if you want to, but when it’s time to get something done, the protocol is clear. If you want the DACA kids to leave, you can enforce every law, and you’ll find out that they’re not actually responsible for their actions. Therefore, they can stay. If you want the DACA kids to stay, you can sit back and watch the other side spin their wheels, waste their time, and eventually realize that our laws don’t indicate that they should be kicked out. Therefore, they can stay.
It’s really amazing that there’s so much debate and yet it’s all right there.
That concludes the naive portion of this post. Please continue reading to see what will actually happen and what we can do about it.