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DACA: Why was it passed in the first place?

In his May 2, 1801 letter to Hugh White, Thomas Jefferson wrote, “Born in other countries, yet believing you could be happy in this, our laws acknowledge, as they should do, your right to join us in society, conforming…to our established rules.” Jefferson’s words are taken to heart today as the U.S. continues to admit more legal immigrants (over 1 million) every year–more than any other nation on Earth.

Yet it’s important to note that Jefferson qualified his support for immigration with the condition that these spirited individuals go through the proper legal framework. The job of creating this framework rests exclusively on Congress as prescribed by Article I, section 8 of the Constitution and it’s the president’s job to enforce the laws.

In 2012, however, President Obama granted administrative amnesty to a large subset of the illegal immigrant population and, through this abuse of prosecutorial discretion, overrode the laws set forth by Congress and therefore overrode the will of the people who elected them.

The “Deferred Action for Childhood Arrivals” (DACA) policy directive was issued by the Department of Homeland Security (DHS) after the DREAM Act failed to pass Congress. The president’s ability to use prosecutorial discretion is an incontrovertible and even desirable trait of the American legal system that, among other things, can protect citizens from vicious laws; as Cass Sunstein notes, “There will often be a gap between law on the books and law in the world, and for good democratic reasons.” 

The president’s frustration with congress is shared by a majority of Americans, Republican and Democrat alike, because of its tortuous procedures and the incessant bickering. We therefore have a strong executive who possesses, what Publius called in Federalist 70, “energy”–a quality that lies in contradistinction to a legislative body whose intended quality is prudence and probable outcome is stability.

As Harvey Mansfield notes in his book Taming the Prince, “…energy and stability appear as the two modes of political power…, but stability comes first because energy seems to be needed for the sake of stability rather than the reverse.” Adding, “[Energy] is merely a mode of power that may be used for good or ill…”

President Obama’s executive action was so flagrant that it breached the vital ambivalence afforded by this constitutional antimony. According to Article II, section 8 of the Constitution, the president “shall take care that the laws be faithfully executed.” This means the President has a responsibility to supervise the enforcement of the law irrespective of his personal feelings on its wisdom unless he reasonably believes the law to be unconstitutional.

However, Obama has made no claim that the current immigration laws are unconstitutional and has defended his policy exclusively on the grounds of prosecutorial discretion instead relying exclusively on prosecutorial discretion.

In Arizona v United States the Supreme Court acknowledged the important role of prosecutorial discretion in immigration matters, but doesn’t authorize the executive to rely exclusively on prosecutorial discretion; rather, the Court inextricably linked the president’s powers of prosecutorial discretion to the discharge of other functions of his office.

The Court notes, “Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.” The president may use prosecutorial discretion when he deems it necessary to better discharge some other facet of his office, but the Obama administration made no such claim and does not defend DACA on these grounds.

The Arizona Court also acknowledges that the president may use discretion in the enforcement of immigration laws when deporting an individual is deemed “inappropriate,” elaborating that “The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return.”  

An individual case would obviously be rather inconsequential with respect to the broader aims of a congressional policy, however, as Robert Delahunty and John Yoo point out, DACA was of an entirely different order, encompassing “a class of 800,000 to 1.76 million.” If this is possible, Delahunty and Yoo ask, “what discernible limits are there to prosecutorial discretion?” Indeed, if prosecutorial discretion can be turned upside down in this fashion, both sides of the isle should have grave concerns about its limitless application should the other come into power.

The principle of prosecutorial discretion is important to effectively budget the time and resources of enforcement offices; in other words, law enforcement is given the power to prioritize. The Obama Administration did, in fact, defend DACA on these grounds, with the president writing in his 2012 Time Magazine defense of the order that the Department of Homeland Security “has taken steps to…focus immigration enforcement resources in the right places.”

However, neither the president nor DHS gave any evidence that resource scarcity prevented the Department from enforcing the laws. The Administration provided nothing by way of estimates as to how DACA’s cost benefits outweigh the current policy. This defense was nothing more than a pretext for the president to implement the policy that congress rejected.

Readers may say, perhaps not unfairly, that I’ve missed the mark on the issue. It’s not so much the legal question that ought to be the primary consideration, but the human question.

Many of the DACA recipients have known no other country but the United States and deporting them back to their countries of origin would be an act of cruelty that violates America’s compassionate spirit epitomized by the Statue of Liberty. Hardliners on the right will say that U.S. should reserve its compassion for its own citizens first while those on the left want amnesty for not just the DACA recipients, but also the broader illegal immigrant population. DACA’s constitutionality is irrelevant to many who focus on the human question, but one thought continues to disturb me: if the Constitution is what makes this country worth coming to in the first place, is it not ironic to ignore it?

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