This is perhaps the most heartbreaking to write. I like to look at the big picture and the interconnections of one act and the rest of the economy, society, foreign policy, and so on. However, this is just unfair. Therefore, it deserves a post devoted to it because it’s just cruel. It has no benefit to anyone, it has nothing to do with what we stand for, and it’s rooted in nationalism and nativism. Yes, the DACA children didn’t come here legally, but I don’t care. I don’t care because Trump doesn’t care. If he had actually considered the illegality of their crossing into the United States, maybe I would have cared about that part of it, but he and many people only care that they weren’t born here. Moreover, many people are even upset that those who don’t look like them are born here everyday. So, it has nothing to do with illegal immigration. It has to do with skin color, culture, language, and religion.
I’d like to keep this post clean and analytical rather than make it a rant. Those of you that are here for a nuanced argument, this paragraph is for you. The argument is pretty one-sided, but I am definitely not going to ignore anyone’s opinions. The fact is they weren’t born here, their parents came here illegally, and someone has to be punished. We’re a nation of laws, and that’s all there is to it. That’s a fact. Now, how do we do that? Do we just put them in jail? I mean, it seems the popular opinion is to just deport them and be done with it. That seems like a fair solution. I mean, some of those kids knew it was illegal and came with their parents anyway. Another solution is to deport their parents and let their kids stay because the kids were just dependents that would have not survived on their own because they were old enough to know the law but not old enough to take care of themselves. Another option is to deport them all and give them priority in terms of applying to come back legally. The other issue is whether they would be given a conviction for the illegal crossing, which would make it harder for them to come back, even with priority.
So, there’s a lot to consider in this case. If we’re just looking at the law, it’s quite hard to enforce the laws and also give these individuals and their parents a chance. They broke the law, and in the spirit of the rule of law and to ensure that people understand laws are to be enforced and not selectively ignored, it seems really hard to enforce every relevant law and yet somehow let these people stay or let them come back after deporting them.
Given that it’s incredibly hard to enforce the laws that are on the books, that opens up a discussion that I don’t think anyone is really having. 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. In fact, we’ve looked at it already. Yes, I’VE written about it already, but the Supreme Court of the United States of America has already written about it. They’ve decided upon it already. When emotions are high, we tend to talk about ethics and what we stand for and our mission as a country. We’ve always been quite different. Despite Andrew Miller‘s recent perversion of the meaning of the Statue of Liberty, we’ve always been a nation with open arms. However, ALL OF THIS is so incredibly unnecessary here.
Let’s take a look! Amazingly, I can explain it all in just a few paragraphs.
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.
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.
The fact is Trump is going to interpret the law however he wants and it’s up to the Legislative and Judicial Branches to enforce the separation of powers, and I don’t see any clear language about a law enforcement body in charge of that. Moreover, I don’t see how that could actually be done. Therefore, let’s look at what is going to happen and what we can do.
Trump wants to deport all the Dreamers. He also wants to toughen border security to stop illegal immigration altogether. He’s spoken with Democrats recently, and one such meeting led to a six-month period in which he guaranteed that DACA recipients would not be deported in exchange for Democrats allowing them to increase the debt ceiling to dodge a government shutdown. This agreement also included a promise by Democrats to provide funding for border security and also included Trump strongly encouraging Democrats to support passage of the RAISE Act. Democrats Chuck Schumer and Nancy Pelosi, who were the principal Democrats attending the meeting with Trump, claim that Trump agreed to not include funding for the border wall at this point. However, Trump has denied this via Twitter.
Since it’s hard to know what’s really going on and the intention of this blog is to actually inform and not speculate, I really shouldn’t get into the details of that meeting because it’s hard to know what really happened.
If we do deport the Dreamers or really anyone, there will be dramatic effects on the economy, society, the government, and national security. Many researchers say the cessation of the DACA program would cost the U.S. more than $100 billion dollars. We would lose all their hard work and production. We would lose the money they spend in the United States.
I know there are many Americans that would be willing to pick fruit and work in positions currently filled by people who aren’t citizens or who aren’t even legally allowed to hold those jobs, and I really reject the narrative that Americans would refuse to do those jobs. There are plenty of people who need work. I’d even take the job working in a field because I’d get the exercise and sunshine. Perhaps I wouldn’t understand how hard it is at first, but once I’d take the job, I’d be getting paid and would likely keep the job until I find another job. If I really can’t find an other job besides picking fruit or something, then I’d be picking fruit for a while. My point is that maybe Americans should be given a chance to have those jobs. However, those workers currently holding those jobs are afforded the same rights and protections as U.S. citizens and can’t be removed from their jobs for reasons an American cannot. So, again, legally, you can follow every law you want, and you still can’t replace the migrant worker with an American based on nationality or another protected class. You just can’t do it. So if this is all about the rule of law, you still can’t do it.
Trump also feels that there’d be a dramatic effect on society if we deport DACA recipients. He feels that ‘real’ Americans will finally get their country back. He has an image of what America should be. It’s what it used to look like, and he’s not emotionally comfortable with what it looks like now. That means language, culture, physical appearance, etc. Based on his reactions to the incidents in Charlottesville, I think he’s more concerned about that than actual crime or employment statistics.
Most people feel that America is changing, and most people have a problem with it. Those who don’t say that are probably coping with it better than others. Now, that’s probably a slight majority, but most take issue with it. However, many people confront their own insecurities and don’t allow them to affect their decisions about who to vote for, who to hire, and if they’re an official, how to write and/or enforce policies. Therefore, it’s all about how we handle the situation.
Trump has also said the government will be better off, claiming they won’t have to spend as much money on deporting illegal immigrants once they’re all gone. He could also just not spend the money deporting them in the first place, and that would cut the cost right away. Therefore, yet again, he’s showing that cost is not really his motivation here.
On the other hand, I do think the government would save money and actually make money. The government would get more withholding tax because workers would be paid at least closer to the minimum wage than before, and fewer would be paid under the table with no tax record at all. It’s clear that none of this is the reason why Trump wants to kick them out, but I do think the government would make more money from payroll taxes.
The government would, of course lose billions because productivity would drop, which leads to a drop in tax revenue because taxes paid on income drop when income drops. Of course. When lower productivity causes companies to have less money to pay their employees, whether they’re working there illegally or not, those workers will have to be laid off anyway, which lowers payroll tax. Don’t forget all the sales tax losses, as well, because people won’t be spending as much because they won’t have it. Since the money won’t be spent and, in most cases, since we don’t have a wealth tax in the United States, money not spent is money not taxed. So when things slow down, no matter how that happens, the government loses tax revenue from that.
This would also be a problem for national security. This is more indirect, but it’s very true that the President of Mexico absolutely detests Trump. He tweets directly to Trump all the time, sending videos that explain in detail why Trump is ruining our relationship with Mexico. If they start getting cozy with China, then we have a major issue. China is already using the drug cartels to ship opioids into the United States, and this supply chain is now responsible for more than half of the opioid overdoses annually in the United States. Moreover, China is getting closer to controlling Venezuela. As they move through Central America, they could start to influence Mexico quite easily. As we renegotiate NAFTA, Mexico may then claim economic reasons for allowing China to pressure them.
Aside from China, though, we have a different issue that is softer and much more pervasive and irreparable. I recently wrote a post called “Falling Behind On The World Stage,” which talks about how Trump’s attitudes about other countries and how he not only wants to isolate the United States from the rest of the world but also that he seems to be doing a good job at that. I won’t go into all the detail in this post, but essentially, the United States is not imperialist or colonial. It relies on relationships. Those alliances are created through talking, negotiating, and common interests. If we actively show other countries that our main control is to remove connections simply for the sake of being an island, then they’ll go elsewhere. I just don’t think Trump knows how to make friends, whether in a sandbox, a boardroom, or at any number of international summits around the world, and sadly, that’s going to hurt us real bad.
We never know how close these relationships truly have to be because small countries are dependent on us and there are other interdependencies and economic entanglements that make it impossible for many countries to depart from a working relationship with us. Therefore, we have to wait until an event happens to see how those countries respond. That could be an attack on a NATO country and one of those countries not living up to the full spirit of the treaty or violating the treaty by not sending troops. That could be Australia not letting the United States military consult its military on how to handle issues in the South China Sea, even if we may have more at stake and more expertise in the subject matter because, frankly, Australia may not want us to have that control. Our generals have more power than the top generals in the South Korean army, but that’s based on existential threats. That’s a working relationship. If South Korea had a better way and liked us, they wouldn’t change that relationship. If they found a better way and didn’t like us, they wouldn’t need us.
Based on what I’ve written, you can tell that I think ending the DACA program is a horrible idea. Moreover, I think it’s clear that Trump doesn’t want to end it for the reasons he’s saying. He’s just a racist. With all the analysis going around, it’s ironic and perhaps unfortunate for those with analytical mindsets, but really, that’s all there is to it.
So what can WE do to stop him? Chuck Schumer and Nancy Pelosi are working on it, but we can also get involved.
If you’ve been following along these past several months, you know I always tell you to Call Congress, and that’s no different this time. I also have some ideas that you can tell them when you call. That should actually make it easier, too. If you’re nervous about what you’re going to say, then you can tell them any of the following ideas.
If the parents are going to be deported anyway, then any kid under 18 will effectively become an orphan. We can use the Canadian model of sponsorship that they used to sponsor Syrian refugees. Any family can sponsor the DACA children. They would be given a foster home and could continue living here. They’d want their parents to be with them, of course, but if we’re going to at least protect the DACA children, then this is one way to do it.
You can also tell Congress that it’s pointless for anyone to leave that would qualify under the RAISE Act to come right back. So, if you’re going to deport anyone, only deport those that don’t qualify to come back. Anyone that qualifies shouldn’t have to leave their job or their home or whatever. Their lives shouldn’t be upended at all. They should just fill out an application, and if they qualify, their status will simply change from being an illegal immigrant to being a visa holder. It’d be seamless.
We have the power to do this. We have the ability to get Congress to do what we want. This is more of a problem with Trump than Congress, but we do need to get Congress to work with Trump. Since nobody wants to cross the aisle, I’ve offered some ways to cross the aisle so that Congress can tell just blame us for that. If we petition for crossing the aisle, then they can just say we forced them to do it. If they’re not going to take the ‘political risk,’ then we should do it.