Different Strokes for Different Folks

Today, in a 5-4 decision, the Supreme Court ruled that the decision of DHS to rescind DACA was arbitrary and capricious under the Administrative Procedures Act.  Basically, the majority opinion finds that the DHS reason given for recission was not sufficient.  That reason was that, based upon opinions of the 5^th Circuit and the Attorney General, DACA implemented by the prior administration’s DHS was unlawful.  Those opinions explain that Obama’s DHS overstepped its authority by conferring benefits that were in excess and violation of the Immigration and Nationality Act.  

There are essentially 2 parts to DACA – the authorization of benefits to illegals covered under DACA and the Obama DHS decision to at least temporarily not enforce immigration laws as to this group of illegal aliens.  Apparently because the Trump DHS does not address these two parts separately, but instead conflates them together in the reasoning for rescission, the majority finds the decision to rescind the original illegal DACA to be arbitrary and capricious and hence insufficient.  It is, then, insufficient to justify the rescinding of a law on the fact that the law is an illegal exercise by the Obama DHS.

So, as Justice Thomas notes in his dissent, under this decision future administrations can bind their successors “by unlawfully adopting significant legal changes through Executive Branch agency memoranda.” The agency, in this case DHS, must continue to administer an unlawful program from a previous administration.  One administration gets to exceed the law, the second is not allowed to correct that excess.

Two DHS memos.  One creates DACA, essentially amending and altering current law and in contravention of INA and beyond any powers granted to DHS, and thereby provides benefits and stops deportations of a group of illegal aliens.  The second DHS memo rescinds the first based on the fact that the first unlawfully creates benefits and contradicts existing law.  Two memos, both by DHS, one from the Obama administration, the other from the Trump administration.  The first which has been found to be illegal stands, the second is found unlawful. 

It feels like we have entered Alice’s rabbit hole, or perhaps more accurately are living out Orwell’s 1984 – up is down, right is wrong, and 2 + 2 = 5. 

Chief Justice Roberts, in writing the majority opinion, also expresses his concern for the “reliance rights” of DACA individuals.  It seems that in his view the Trump DHS should have considered these reliance interests and held off or delayed the recission or at least instructed immigration agents to “give salient weight to any reliance interest engendered by DACA when exercising individualized enforcement discretion.”  Well, that is simply another way of saying keep the illegal law in place. 

The majority opinion states that “The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination.”  But, while that determination did not address the option of retaining forbearance or accommodating other reliance interests, the DHS “should have considered those matters but did not.  That failure was arbitrary and capricious in violation of the ADA.”

Justice Thomas, in his dissent, states “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”  Exactly!  Chief Justice Roberts and the majority are allowing their own emotions and the emotions of the vocal pro-DACA demonstrators to color their thinking. 

It is easy to have sympathy if not empathy for children taken at a young age to another country who then discover they are there illegally and essentially have no country to call their home, face the possibility of deportation to a land they don’t even know.  That is a problem.  And that problem is addressed (or not) by our legislative branch. 

The Obama DHS did not have the authority to essentially create new rules to address that problem.  Obama himself admitted that the action was done through DHS because he knew that Congress would not enact it as law.  DACA is illegal.  Its recission will cause heartache.  But its rescission is legally the right thing to do.

In this opinion the Court is essentially making law or perhaps even endorsing illegal law when it is emotionally compelling.   That is not the Court’s role.  That role also does not belong to DHS.  It belongs to the Legislature. 

We expect the Court to be dispassionate and logically look at the law.  But here we have a decision that seems in large part to be based on emotion, on what the court thinks is the right thing to do or what it would do if it had the authority to make law.   When the court so clearly and openly loses its way, America as we know it is in big trouble.

There are many court decisions as well as many laws with which I do not agree.  I used to say “be patient, the system will work” meaning that if the Court went beyond its authority the legislature would hold it in check by amending or writing legislation.  And if the legislature or administrative agencies exceeded their power, the court would hold them in check. 

But, if the Supreme Court cannot follow the rules, if it puts emotion, popular sentiment (mob rule), and politics in the place of dispassionate deliberation, then we no longer have a system to follow or to trust. 

I want to note here that this opinion, with majority, concurring, and dissenting opinions, is 79 pages long.  I obviously cannot do it full justice in this short blog, and I would encourage everyone to read it in its entirety and form their own opinions about it.  But that reading should be done objectively and dispassionately. 

Even if you agree with the outcome, if your heart is with the DACA group, that outcome can and should be achieved through the appropriate processes and not by playing legal mumbo-jumbo games to enforce what should be an illegal action by a government agency.  Allow that once, and you are justifying it again when you may not be so happy with the result.

The Politicization of Truth

We seem to be living in an era where one’s ideology determines what one’s Truth is.  How else can you explain the assault on the medical report issued by the doctor who examined President Trump, as well as, it should be noted, President’s Obama and Bush?  Because some so want to believe that the President is not fit for office, either physically or mentally, because that truth does not fit their reality, we have them questioning the physician as well as making their own pronouncements of the President’s ill health despite the report and despite the fact that, unlike the report’s author, they have conducted no examination whatsoever of the President.

 

Similarly, how can one explain that while Sen. Durbin is the only one who claims to have heard the President utter the word S***hole during a meeting, and despite the fact that at least 4 others present assert that the word was not uttered, those whose agenda the remark supports, including the main stream media, continue to take the word’s utterance as a proven fact. 

Let’s consider some examples of ideology rather than truth controlling our political narrative since Mr. Trump became President Trump.  The Democrats, as well as some Republicans and others were so stunned they could not accept the election results.  Thus began a multitude of attempts to unseat President Trump from office.  Hence, despite no evidence in over a year’s time, we are still hearing about collusion between Russia and the Trump campaign as if it were truth. The digging for evidence goes on and far outside any fields with any relevance to such collusion yet the Democrats hang on, because collusion supports their ideological goals.  But, when that story failed to unseat the President, those who were and are determined to do so had to look for other “truths” that would lead to their desired result.  We have had the stories about the President’s mental health – now disproven by an examination by a competent doctor.  Nonetheless, the belief that he is mentally ill remains a truth for may whose ideology it suits.  (I hate to tell these people, but just because someone behaves in a way they don’t like, or holds views and values different from theirs, or supports policies contrary to their own, does not make someone mentally ill).  We also have the allegations that the President is a sexual predator or the story that the President is a racist.  I have yet to see any concrete proof of either.  The President, unlike some of his opponents, does not single out individuals based on their race, but tries to treat all Americans equally.  Nonetheless, those whose ideology is served by having a racist president, will see their view as “truth.”

Let’s consider how asserting that President Trump is racist serves the current Democrat ideology.  The Democrats assert their concern for Dreamers (I’m not sure they really are concerned, but appearing so is part of their political and campaign strategy).  If a deal were reached that gave some sort of permanent status to Dreamers, but also compromised in a way to give some of the other immigration demands of Trump and Republicans, Trump might actually get some good press from the Democrat’s base.  They don’t want that.  So, instead they can push Durbin’s story, say they can’t work with the President because he is a racist, and either leave the DACA situation unresolved (and blame Trump) or demand that to prove he is not racist he must sign a non-compromise bill that only gives the Democrats their demands on this issue.  This is just part of their political strategy.  And in my opinion, it is sick if not un-American.

Let’s just assume for a minute that the President did refer to Haiti as a S***hole country.  So what?  That, my friends, is not a racist statement.  And, following that statement with the comment that we should let in more Asians and people from Norway also does not support a charge of racism.  What it does support is the idea that we should look to what those seeking immigration have to bring to our country.  Maybe that idea could have been stated more eloquently, but there has never been an argument that Trump is an eloquent speaker.    Again, failure to be eloquent is not proof of racism, or mental illness, or Russian collusion, or sexual predation, or any other of the many narratives that the Democrats try to put forth as a reason to end the Trump presidency.

We now have some legislators, lead by Rep. Lewis, announcing their boycott of the State of the Union address because the president is racist.  As noted above, that is their truth, based not on fact, but on their ideology and what they simply wish were true.  In their minds it justifies their refusal to work with the president, but in the end it is simply disrespectful of the Office and of our democratic Institutions and system of government.  It is not helpful to the country or to the American people whom these legislators were elected to represent.  Instead, it is a betrayal of their constituents as they place their ideology and their lies created to support it above the good of this Country.

What I would like to see is the Democrats, along with the main stream media, be fair and honest with themselves and with the country.  Admit that while they don’t agree with Trump’s policies, that he is the duly elected president deserving of bipartisan support.  Acknowledge the many good things that are the result of the Presidents actions, most notably a more thriving economy including lowest unemployment in years for minorities, successes against ISIS and in other international issues, an end to the office of the president being a supporter of identity politics, to name a few.  I would like the Democrats to understand that being the loyal opposition does not mean fomenting hatred toward the president, but means supporting him in his efforts to do right for America, while opposing those policies with which they don’t agree.  It does not mean constant ad hominem attacks against a man whom they personally may not like.

In Communist societies, ideology regularly overcomes truth.  People are imprisoned or worse for not holding the Party’s ideology – its Truth.  That is not our tradition or our history in America, even though many Democrats would make it so.

It’s Time to End the Games

It has been almost a year since President Trump was sworn in, yet the Democrats continue to focus their energies against him instead of for the American people.

Let’s consider the most recent example.   The President shows both leadership and willingness to arrive at a bipartisan agreement on immigration issues:  some sort of permanent status for the dreamers of DACA while ending chain migration and building a wall or its equivalent form of southern border security.  That is, a compromise that is good for America and its people, where all sides get something of what they want while giving up something else to the other side. 

The problem for the Democrats is that such a bipartisan agreement could make the President look good.  So, after an initial meeting they must find a way to get out of this while at the same time making it somehow the President’s fault. 

So, we have the allegations that the President used a vulgar term to refer to Haiti and other nations.  This is from Democrat Senator Durbin.  We have the President’s denial while at the same time noting that he did use tough language in referring to those countries as well as to the immigration proposals.  Which story is all over the news? – the Democrat allegation.  That allegation is now the de facto truth for most people.  (Of course, even if it were true, this president is not the first to use vulgar language in the White House when referring to other countries as well as various other issues; we simply need to look at statements made by Nixon, Johnson, Bill Clinton to name but a few)  But, should the allegation of use of an off color term not be enough, Durbin now complains about the President’s use of the term “chain migration” as offensive to African-Americans and as proof of the President’s alleged racism (no matter that this is a term used by both Democrats and Republicans for years to refer to the fact that the families of one immigrant are often allowed to follow that immigrant into the country).

So, now the Democrats have an out.  They can refuse to work with the President on any bipartisan solution to the current immigration problems claiming his goals and hence the bipartisan proposals are simply racist.  And, I suspect that if any resolution for DACA or other immigration issues fails the Democrats (and the main stream media) will blame it on the President. 

The Democrats may find this sort of gamesmanship entertaining; they may see this situation along with the more general politics of the country as little more than a contest for them to win.  They certainly are not thinking of the country, or of the American people, or of the DACA people whom they pretend to support.

It is really long past time for the Democrats to give up their crusade to bring down the presidency of Donald Trump.   It is long past time for them to put their words into action and work for the good of the country and not simply for their own self-satisfying victories.  And, I hope that the time is here when the American people will see through these Democrat games and demand that they work not for themselves but for the country and the people whom they were elected to represent.

DACA, Dreamers, and Reality

When laws are broken, people often get hurt.  Often those people are innocent victims.  That does not mean that laws should not be enforced.

With that thought in mind let’s turn to DACA and the Dreamers. 

We have immigration laws in this country that provide very generous immigration policies.  We also have people who enter the country illegally in an effort, for whatever reason, to circumvent those laws.  They are illegal aliens.  Sometimes they bring their children with them – they too are illegally in this country.  One can invoke great feelings of sympathy by describing a very young child who was simply carted here illegally by parents who chose to break the law (for whatever reason, noble or not) and most everyone would say they abhor the idea of that child being thrown out of the country.  But, if I ask whether you want to ignore our laws and our Constitution, you might have a different response; indeed, I would hope that the idea of only following the Constitution, our laws, and our system of government when it feels good would be abhorrent to everyone.

And, that is the first problem with the current DACA situation.  When Congress, the body responsible for enacting laws about immigration, failed to reach a solution to address the Dreamers, the then president Obama, tired of waiting, and asserting feelings of compassion, violated the separation of powers and created DACA by executive fiat.  Not only is that itself wrong, it also sets a bad precedent:  do we really want a president to be able to circumvent our separation of powers when he or she feels strongly about something?  The possibilities of that are truly frightening and suggest a totalitarianism rather than a democracy.

So, let’s accept that Trump was correct in rescinding that order and in placing the answer to the dreamers and the immigration questions they pose in the rightful hands of Congress.  It would seem that all law-abiding citizens should be able to agree on that.  But, sadly, they cannot.  Many of the populace would rather have emotion rule the day.

And, so, we have attorneys general of several states filing suit to retain this program that was created in violation of our Constitution.  These are the folks who should be leading the way in upholding our laws, not arguing to enforce programs that are emotionally pleasing to us regardless of whether their creation violated the basic premises of our Constitution and our democracy.

The disagreement should not be about whether the 2012 DACA order should have been rescinded.  Rather, the disagreement should be focused on how Congress should deal with the fact that there are individuals illegally in this country who were brought here as minors.  On the part of most I suspect there is an urge toward compassion, which is good.  But along with that must come an examination of the consequences, both good and bad, of that compassion.  In weighing those factors, one must first have a basic grasp of the actual facts about DACA and the Dreamers, because proponents of various views will put forth only their interpretations of those facts.

First, let’s consider who the Dreamers are.  They had to be under 31 in 2012 and had to have come to America when they were 15 or younger.  Most of the DACA “children” are in their mid-20s today.  They had to have lived in this country since 2007 (10 years as of today, 5 years when DACA was signed in 2012).  Many have jobs.  They are eligible for Social Security, Medicare, and Earned Income Credit on their taxes, but are not eligible for many other welfare benefits.  Many of the Dreamers hold jobs, and there is an argument being put forward that it would be detrimental to lose them from our work force. 

I will begin with considering that jobs argument.  Are there no eligible American citizens that can fill those jobs? Last time I looked there were still many unemployed Americans looking for work.  I read an article this morning that included a statement by an employer that he had 3 construction jobs filled by dreamers and was concerned he would not find replacements.  Huh?  There are not 3 young people here legally who would be willing to take those jobs?  Is it that he won’t find replacements, or that he won’t find replacements who are as subservient as the DACA employees or perhaps who will demand higher wages or benefits?  Do the people who are asserting that only Dreamers can do the jobs really have that low an opinion of our own young adults?  That, alone, deserves a far deeper discussion, beyond what is being addressed here.

But, I am ready to assume that most – nearly all – the Dreamers are good people who are stuck in a horrible situation through no fault of their own.  (I remind people that life is not fair and we cannot fix everything for everyone).  But, if all it meant was giving citizenship to these young adults who were willing to apply and to go through the formal process, I might be for that.  But again, we must look at reality and reality tells us that things would not end there.

So, here are some of the problem consequences with granting any kind of legal status to the Dreamers.  First, if we revoke the rescission of Obama’s DACA order and allow that order to remain in place, we are setting a dangerous precedent that allows a future president to override Congress, our laws, and our Constitution. 

Second, if Congress reinstates DACA in a legal manner, we are essentially sending the message that if you come here illegally eventually America’s compassion will get the better of itself and its laws and you will be granted some means of becoming a legal resident of the country.  This is even if the DACA program itself is limited only to those currently within the country.  One only has to consider the rise in illegal immigration following the grant of amnesty during President Reagan’s term in office.  What is to prevent illegal immigration of new families coming with the belief that if they wait long enough they will be given some sort of legal status.  Not only does this fly in the face of any legal immigration policy, it is also a slap in the face to those families that choose to pursue a legal path to immigration and citizenship.

We also have family unification programs that allow those immigrants here legally to bring in their families.  So the Dreamers would likely have an opportunity to be joined by family members who otherwise would have had to follow a normal immigration procedure.  So, along with granting legal status to 800,000 young adults under DACA we could also be granting legal status to a significantly larger number as they reunify their families.

I can’t imagine being brought to a country by my parents only to be told I am illegally there and hence must deport.  It is a horrible situation.  On the other hand, I also cannot imagine being over 18, knowing I am illegally present, and not considering alternatives beyond hoping that I eventually be given some sort of legal status. 

This is not an easy problem and we should not provide easy solutions; nor should our solutions be based solely on emotion.  Life is hard.  Laws exist.  When people break the laws, even with the best motive, people are hurt.  Parents who brought their children illegally to America may have believed they were helping their children.  They were not.  They were breaking the laws and their children are now the victims of their illegal behavior. 

These children are now mostly young adults.  Like all young adults, they need to find their path forward, and for many of the Dreamers, just as for many other young adults, that path may not be an easy one.  But that fact alone does not mean that we should grant them legal status.   Congress must seriously consider the many possible consequences of their actions on behalf of the Dreamers, focusing not only on their compassion for these young adults, but also on their compassion for the legal citizens and immigrants of this country and for this country’s laws.

DACA

If you are interested in reading the actual DACA rescission order, here is the link:  https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

If you are interested in hearing Attorney General Sessions’ speech announcing the above, here is a link:

https://www.c-span.org/video/?433616-1/attorney-general-rescinds-daca-program

If you are not interested in reading the actual source material, but instead prefer to read opinion and hysteria about it, or to be told what you should think about it, go to most any media source.

I find it amazing that demonstrations and walkouts have already been preplanned based on assertions that are inconsistent with the actual text of the order.  I find it interesting that few seem to care about the underlying legal issues, that the 2012 order was overreach by the executive branch which was in all likelihood a violation of the Constitution, and certainly an affront to the separation of powers and hence to our form of democracy and freedom.  But, then, one wonders if that even matters to those who simply want what they want and want it now.

We are a nation of laws, and laws must be followed, even when they are not to our liking.  It is our representatives in Congress that we elect to create, amend, and adjust the laws.  When we allow a president to circumvent those laws by executive order as was the case with the 2012 order, then we are on our way to creating some sort of dictatorship in which whoever is in power can act on their, not the people’s, desires.  We should all thank the current president for righting the ship of state on this issue, and rescinding the 2012 order.  We should also note that it compassionately allows case-by-case examinations of current DACA people.  Those who find the current laws not to their liking, rather than throwing a variety of temper tantrums based on incomplete or incorrect understandings about our government and its laws, should fully and accurately inform themselves and then take their thoughts and suggestions to their chosen representatives in Congress. 

Addendum:  Here, also, is a link to the President's statement on the rescission: https://www.whitehouse.gov/the-press-office/2017/09/05/statement-president-donald-j-trump