Friday, November 15, 2019

#319 / DACA And The Elected Monarch Syndrome

The New York Times carried an article on Wednesday, November 13, 2019, reporting on the arguments about the DACA program presented before the Supreme Court on Tuesday. 

DACA stands for "Delayed Action for Childhood Arrivals." It is a program that was initiated by President Obama. Reuben Navarrette, Washington Post columnist, may be right that DACA is a bad deal for those who are enrolled, and that it "isn't worth saving," but in the absence of the kind of "comprehensive immigration reform" that Navarrette properly calls for, DACA does provide participants with some assurance about their immigration status.

DACA participants are persons whose parents brought them to the United States when they were extremely young. They are sometimes called "Dreamers," alluding to their hope to be able to continue to live in the United States, and to pursue the "American Dream." They are all undocumented. The DACA program insures qualified participants that they can continue to live here, without fear that they might be subjected to summary deportation. Most people agree that it would be unconscionable to deport these young people who, while they did nothing themselves that was "illegal," find themselves without legal status in this country.

Our current president is proposing to terminate the DACA program. He does also promise that he will "take care" of those currently enrolled. Just what the president means by "taking care" of DACA participants is, of course, unknown. In Mob-speak, "taking care" of a problem often means killing off one or more inconvenient persons. Many people, including many Dreamers themselves, don't trust the president. While the president has, without doubt, made some very nice statements about how the country is benefitting from the presence of DACA participants (statements that are demonstrably true), the president has also made some demonstrably untrue statements about DACA, and specifically that "many" participants are "very tough, hardened criminals."  

The president has ordered the termination of the DACA program. After the president gave that order, legal challenges ensued, and lower courts have said that the president's order terminating DACA is invalid. The challenge has now reached the Supreme Court. 

The president's argument that he can legally terminate DACA is based on the fact that the program was created by Executive action (by President Obama), and that what one president can do by Executive action another president can undo by Executive action. Frankly, there does seem to be a good deal of logic supporting that argument, as made on behalf of President Trump and his order to terminate DACA.

There are, though, arguments on the other side (which is why lower courts have found President Trump's order terminating DACA to be invalid). The argument against the president's order terminating DACA is that the order was "arbitrary and capricious." While the president has authority to decide what happens with programs based on executive decisions, any presidential decision does need to comport with basic standards of fairness - including the idea that there needs to be some well-supported justification for terminating an ongoing program that so profoundly affects the lives of about 800,000 DACA participants. 

Since I haven't read the briefs, and since I didn't listen to the attorneys who argued the case before the Supreme Court, I have no informed opinion about which side has the better argument. From a personal perspective, I am hoping that the Court's decision will not lead to the termination of the DACA program, since I so strongly support the idea that those young children brought to this country by their parents should be welcomed, not rejected. I am not very confident that President Trump's statement that he will "take care" of DACA participants can be trusted in any respect. 

However, all that said, I am not very happy with the idea that presidents should have the right to set immigration policy by Executive action (and DACA wasn't established even by an Executive Order, as Navarrette points out). I like what President Obama did, in terms of what it has meant for those involved, but I really don't think it was a proper subject for Executive decision-making. 

Congress - the Legislative Branch - is supposed to set policy in our country. If we are willing to entrust basic decisions to an elected president, then we are really suggesting that our nation, at bottom, relies on an "Elected Monarch" to grapple with the really tough policy calls. At one point, before establishing the DACA program, President Obama said he couldn't do it, because he "wasn't a king." Navarrette's column recites that bit of history, and it's an important part of the story. Obama apparently did what he did with some reluctance.

President Trump is truly comfortable with the idea that the president has the powers of a "king," and that the president essentially serves as an Elected Monarch. We need to reject that idea, but the only way for that to be done properly, under our Constitution, is to demand that Congress make the decisions (and take the heat). If, as expected, the Supreme Court decides that what one president initiated by Executive action another president can terminate, our efforts ought to be to insist that Congress take action to establish a set of immigration laws that comport with our values, and that produces positive results for the nation as a whole, and for all those individuals, including "Dreamers," who are so profoundly affected by the immigration policies of our nation. 

If the Supreme Court backs Trump (currently the expected result) we should not get mad at the Supreme Court. We should not even get mad at the president. 

We need to get mad at each and every Member of Congress whose failure to act seems to be carrying this nation to a shameful result, crushing the dreams of those enrolled in the DACA program, and crushing even more completely the ability of our nation to escape from a government by an "Elected Monarch." 

That is not the way it is supposed to be!

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