September 07, 2017
President Trump’s decision to end the Deferred Action for Childhood Arrivals (DACA) program was prudent. While Lady Prudentia is not often a guest at the White House these days, I’m thankful when she pops in to temper policy. “Prudence,” said Burke, “is not only the first in rank of the virtues political and moral, but she is the director, the regulator, the standard of them all.”
DACA, created by President Obama in 2012, stops the deportation of young illegal immigrants who came to the U.S. as children for up to two years. It also grants them authorization to work, effectively giving them the means to be productive members of society. By giving lawmakers a six-month timeline to pass a similar measure, Trump avoided punishing U.S. residents who broke the law as children by illegally immigrating here.
In putting the ball in Congress’ court, Trump avoided both a constitutional crisis and stoking the nationwide tension that threatens to tear the country apart. Trump himself has struggled openly with the issue, vowing to tackle the conundrum “with heart” and calling it “a very, very difficult subject for me.”
Yes, the parents of DACA beneficiaries are lawbreakers, fence-jumpers, and smuggle artists. But punishing a child for his or her parents’ actions?
Lawfully speaking, DACA doesn’t have a leg to stand on. President Obama implemented the program via executive fiat in the form of a memo—he didn’t even bother to put it in print as an executive order. The memo declared the Justice Department wouldn’t enforce the law as written, granting de facto amnesty.
DACA, as implemented, is unconstitutional. Even Obama’s DOJ considered it legally precarious. It should be scrapped. But there’s more than one way to terminate a law, and there’s more than one timeline. Instead of taking a hammer to it, Trump took tweezers.
A bevy of state attorneys general have threatened to sue the administration should Trump refrain from ending the protective program. Attorney General Jeff Sessions informed the president that he cannot back the order in court as it is written. For the constitutionally faithful, any law or diktat that contradicts the country’s governing document must end immediately. Otherwise, the de jure aporia undermines the entire foundation of a lawful society.
Throughout our history, the rule of law has been skirted—and at times trampled—in extreme circumstances. John Adams’ outlawing of dissidents; Abraham Lincoln’s suspension of habeas corpus; Woodrow Wilson’s jailing of journalists; Franklin Roosevelt’s internment of Japanese citizens—all were regarded as necessary of the times, but are looked back upon as breaches of power. “Constitutions are no guarantee for political freedom; they acquire strength only with age, use, and support,” wrote Arthur Schlesinger Jr.
In the perfect republic, the law would be strictly adhered to, no exceptions made or given. But perfect republics are like the communist paradise dreamt up by Marx—they have never and will never exist. As Irving Kristol wrote, the job of “government is not to shape society according to some design of perfection but to cope.”
So it is with DACA. Between Charlottesville, antifa violence, and the never-ending Russia investigation, it feels like we’re at a breaking point in our history. Ratcheting down the high emotion by gradually unwinding an ethically compromised executive action could be a necessary step for self-preservation.