When Donald Trump issued an executive order putting Dreamer kids on a short game clock he reignited a legal and constitutional debate about separation of powers, presidential powers and the rule of law. This debate first stirred passions in 2012 when Barack Obama first issued his own executive order enabling a specific subset of undocumented immigrant children to stay in the United States without fear of deportation. Those kids are among the many known as Dreamers – children brought to the United States by their parents through no choice of their own.
Obama’s executive order is called the Deferred Action for Childhood Arrivals program, or DACA. At that time it created a hullaballoo among anti-immigration conservatives, mostly centered on the order’s illegitimacy under the law. Trump’s new order giving these kids six months until the old order is repealed has reopened this contention. So, what is DACA? Is it constitutional or is it an abuse of power? Is it sound immigration policy or is it amnesty?
For me, the DACA debate has brought back a flood of memories from the fight over immigration here in Utah several years ago. But the arguments in support of DACA today remain the same as those arguments given to support comprehensive immigration reform in 2011. Utah got it right and, much to the chagrin of conservatives today, so did Obama.
No immigration debate is complete without a dialogue-stopping assertion about the rule of law. What don’t we understand about the word “illegal”? We are a nation of laws, not men. If we are not governed by the rule of law, only dictators will govern, and so on. Each of these platitudes has true meaning. Unfortunately, accurate application of those meanings is absent across the board when it comes to immigration.
It is important to understand the rule of law. That term – rule of law – does not alone mean we set laws and live by them. The term rule of law also projects who we are, how we think, our culture, real human experiences, and so on. In other words, we will get laws wrong if we get the rule wrong. The term is not tautological. The rule is not the same thing as the law. The rule and the law are two independent ideas. Immigration policy at every level has suffered for decades because policy makers, except here in Utah, got the rule wrong and the idea of an accurate rule bleeds into every immigration debate, from building the wall to DACA.
I like how the American Bar Association <a href=”https://www.americanbar.org/content/dam/aba/migrated/publiced/features/Part1DialogueROL.authcheckdam.pdf” target=”_blank”>describes</a> the rule of law, “A frequently heard saying is that the rule of law means the government of law, not men. But what is meant by “a government of law, not men”? Aren’t laws made by men and women in their roles as legislators? Don’t men and women enforce the law as police officers or interpret the law as judges? And don’t all of us choose to follow, or not to follow, the law as we go about our daily lives? How does the rule of law exist independently from the people who make it, interpret it, and live it?” The short answer is that it doesn’t.
President Obama got both the rule and the law right in ordering DACA and Congress would do well to follow that example. Many opponents of DACA claim that Obama’s order was unconstitutional on the grounds that he did not have the rightful power to issue the order. They say that was Congress’s prerogative. The real answer is yes and no. Obama had authority under something called “prosecutorial discretion.” <a href=”https://pennstatelaw.psu.edu/sites/default/files/Wadhia%20ForPrinter.pdf” target=”_blank”>Prosecutorial discretion</a> is simply a constitutional acknowledgement that not every broken law is capable of being enforced. Obama used this legal idea to issue DACA – to say that the federal government was not going to chase after these Dreamer kids, all things considered.
Obama got the rule right. Those kids are not culpable in their immigration status. Their parents brought them here and America is the only country they know. Because he got the rule right, he got the law right as well.
Is DACA really the province of Congress? Yes. But when one branch of government fails to uphold its end of the law we cannot legitimately complain when another branch moves in to do the right thing, particularly under exigent circumstances. Think Abraham Lincoln and the Civil War. We can argue over separation of powers. But it is hard to argue about doing the right thing. After all of the hoopla, regardless of where you stand on the processes up to this point, Congress now has the opportunity to do the right thing as well and protect the Dreamer kids.