DACA, law, politics, and reality

DACA (Deferred Action for Childhood Arrivals) and its associated program, DAPA (Deferred Action for Parents of Americans) have been controversial since their announcement by the Obama administration.  Neither was a valid law;  both were based on the deferral of action against those affected, effectively postponing action required under US law in favor of administrative discretion (the latter not being authorized by any law).  That's why both programs attracted lawsuits from more than a few states, alleging that they were unconstitutional and illegal.  Initial court rulings found that to be the case.  Further legal action was imminent, but with the announcement of the end of both programs, that appears to be moot.

I have sympathy for the young people affected by DACA.  They were, indeed, innocent of any wrongdoing in coming here, having been brought to the USA by their parents or others without having consented to or participated in any illegal act (something they could not do, by definition, being still minors at the time).  Nevertheless, as Karl Denninger points out:

I'm not swayed by the claim that the kids involved are blameless.  That doesn't matter; the fact is that they have accessed and consumed services in this nation to which they were not entitled over the previous years, and nobody is demanding that they pay the cost of said services back.

Theft by conversion is still theft.  Yes, if you have no ability to reason at the time (because you're a young child) then you cannot be held criminally liable for said theft, but the fact of the matter is that you still got the benefit and paid nothing for it.

That it was your parents that worked under the table (and thus evaded said taxes) or worse, stole someone's identity (and thus committed both a criminal act and imposed direct cost on someone else) isn't material.  You were the beneficiary of that conduct -- both directly in your home and indirectly in your access to schools, infrastructure, medical care and more that you wouldn't have had.  You've benefited greatly over these years.

May I remind you that President Obama, when he announced this program, admitted he had no legal authority to do so.  Congress could have changed the law over the intervening time, and indeed prior to that time, but did not and has not.

Speaker Ryan's mealy-mouthed nonsense is even worse, as the person who could have brought said bill to the floor of the House and hasn't done so.  He is the worst sort of hypocrite and jackass, in that he's made a nice name for himself by claiming to be for the Rule of Law -- right up until it is proposed to be enforced.

Then he turns into someone who condones said theft instead.

DACA is illegal folks.  This is not about compassion, it's about the rule of law.  If someone manages to break into a bank every day and steal $20 without being caught for years or even decades that does not change the fundamental nature of their act, nor the fact that's illegal.

There's more at the link.

Mr. Denninger makes two very important points.  The first is that this is, indeed, a question of the rule of law.  The law of the land was deliberately flouted by the Obama administration when it implemented DACA.  Courts have confirmed that.  The executive knew it could not get a law through the legislature that would have given it the authority it sought;  so it chose to ignore the law instead, and do what it wanted, rather than obey the legal restrictions that should have governed its actions.  As the New York Post points out:

True prosecutorial discretion involves a case-by-case determination by authorities. Obama’s executive amnesties were sweeping new dispensations designed to apply to broad categories of illegal immigrants.

They didn’t involve simply deciding not to prioritize the deportation of the affected illegal immigrants, but the conferral of various positive benefits on them, most importantly, work permits.

This is clearly a new legal system for these immigrants, and in fact, President Obama once slipped and told an audience, “I just took action to change the law.” Prior to DACA, Obama repeatedly said that he didn’t have the authority to implement his own amnesty absent congressional action — before doing just that.

Again, more at the link.

The consequences of that deliberate flouting of the law will now be felt by the very people the Obama administration claimed to be helping - but not by the bureaucrats and politicians who committed it.  I think that's unconscionable.  I'd like to see everyone involved in developing and implementing DACA and DAPA convicted of crimes and sentenced to appropriate punishment . . . but we all know that's not going to happen.  Sadly, that's the politics of corruption in which we live.

Mr. Denninger's second point is equally important, and just as valid.  Our politicians are ultimately gutless, spineless jellyfish who did not take a stand on law or on principle.  Congress and the Senate could have done one of several things:

• Either pass a law restraining the Obama administration over DACA and DAPA, and insisting on the rule of law;  and/or -
• Sue in court to have those illegal, unconstitutional programs halted and overturned;  and/or -
• Pass laws to encompass and legalize the DACA and DAPA programs, if that's what their constituents wanted.

Our representatives chose to do none of those things.  It was more convenient for left-wing, liberal politicians (and much less politically risky) to let the Obama administration get away with doing something that was popular with their electorate.  What's more, conservative, right-wing legislators could gain points with their electorate by blaming the Obama administration's unilateral actions.  In both cases, politicians did not have to take potentially unpopular action themselves, thereby insulating themselves from the problem and its fallout.  That was cowardly, and a dereliction of their duty, but they didn't care about that.

In the short term, our elected representatives covered their own asses by their inaction.  That has just come to a screaming halt - and I think President Trump and his team may have deliberately timed the repeal of DACA to ensure that happened.  I think it was a masterful display of "power politics" in the domestic sphere.  Consider these realities.

1. The current Administration has delayed the end of DACA for six months, specifically to allow Congress to pass a new law authorizing the program, if it so chooses.  President Trump stated explicitly:  "As I've said before, we will resolve the DACA issue with heart and compassion -- but through the lawful democratic process -- while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve. We must also have heart and compassion for unemployed, struggling and forgotten Americans."  He's invoked all the hot buttons:  compassion, the rule of law, and the priority and precedence that should be given to existing American citizens.
2. By doing so, President Trump has put Congress in the hot seat.  If it passes DACA legislation, its members will have to justify their votes to their constituents, who may (or may not) approve of the use of US taxpayer funds to help those who are here in violation of the rule of law.  Congress will no longer be able to shelter behind executive action to cover its own lack of initiative or action.  Laws are made by Congress and the Senate, not the President.  Responsibility has now been placed firmly where it belongs on this issue.
3. By passing the problem to representatives and Senators, the President has ensured that they face a stark choice.  They have a limited time in which to act, and face a legislative calendar that's already crammed with important issues.  If they feel strongly about DACA, they can save the program; but they can't waffle and emote and tiptoe around the issue, because they don't have time to do that.  It's put up or shut up, as far as this program is concerned.  Delay and obfuscation will get them nowhere.
4. President Trump has also put the Republican Party on notice.  It can stand with him, and support his program;  or it can run against him - but it can't do both, or try to do one thing while pretending to do the other.  The Republican Party has done little or nothing to enable the President's agenda, despite clear public support for that agenda from many of its constituents.  It's tried to both have its cake (a Republican president) and eat it (by waffling, obfuscating and complaining, instead of acting to implement what the President and its electorate want).
5. In six to eight months from now, every representative, and a third of all Senators, will face primary elections to determine whether they're going to be up for re-election in 2018.  If they fail to do what their electorate wants, the odds of their facing serious, meaningful challengers during those primary elections becomes much greater.  What's more, President Trump has already come out in support of challengers to one of the most obstructionist of his Republican critics.  By doing so, publicly and unapologetically, he's sending a signal to the rest of the Republican caucus.  If they oppose him, if they fail to get with the program, he's more than capable of working against their re-election, too - and they know full well that his public support is much greater than that of Congress.

In effect, the President is daring the Republican Party to put up or shut up over DACA.  He's betting that, if they do, he'll come out of it better (and perhaps politically stronger) than they do.  It's an interesting political calculation . . . and its effects remain to be seen.

There's also the reality that our political leaders face a great many problems that are far wider in scope than DACA, and potentially far more consequential for the USA as a whole.  Recovery from Hurricane Harvey;  potential damage from Hurricane Irma and possible future storms;  increasing the debt ceiling;  passing a budget;  dealing with North Korea;  the ongoing turmoil between the left and right wings of US politics . . . any or all of those issues may demand so much time and attention that DACA simply "slips through the cracks".

The ball is in Congress's court.  The President has obeyed the law of the land in terminating the program.  Will Congress change that law to re-enable it?  That's their problem now.

Peter