With the Trump administration's announcement that it will phase out the Obama White House's unlawful Deferred Action for Childhood Arrivals (DACA) program, the inevitable flurry of lawsuits has been filed by supporters of DACA who allege that ending the program would somehow itself be unlawful.
I find that argument both oxymoronic and curious in the extreme. If, just for the sake of hypothesis, we were to accept their position that DACA was a legal and constitutional exercise of President Obama's executive powers, then how could it possibly be illegal for the next president to decide, using the same legal and constitutional exercise of executive power, to end the program? I very much would like to see justifiers of the DACA program try to square that circle.
But of course they won't rely on dry legal arguments. There's little doubt that they will instead appeal to emotion by pointing, often and vigorously, to the wrong of "sending back those who had no say in their arrival here". Of course, it does no good to point out, in contradiction, that many of those arrivals arrived when they were in their late teens and came from countries where youths grow up early. In other words, they were of an age to make the decision — and the trek — all by themselves. After all, DACA program guidelines makes no distinction between the two groups: those who truly were "brought" and those who chose to come.
But the other, and to my way of thinking more important, issue is that DACA (and any legislative follow-on that grants amnesty to DACA recipients and their like) acts to encourage tens of thousands more parents to smuggle their children, and more teens, law-abiding and gangbanger alike, to decide to travel northward, usually from Mexico and the "Northern Triangle" of Central America.
This is to be avoided at all costs. We, as a nation, should not be in the business of encouraging and facilitating the smuggling of, or trafficking in, human beings, especially the young and vulnerable. That is the real harm of DACA.
As I said, the arguments made in court may have a veneer of law behind them, but they will more vociferously appeal to emotion. By way of example, we have a recent article that appeared in the New York Post, "Judge lays into Justice Department lawyer over 'heartless' DACA decision", describing how Nicolas Garaufis, the federal judge presiding over one of the DACA lawsuits in New York City, badgered and derided the Justice Department attorney defending against the lawsuit. Here are some of the snippets from the judge's tirade, as described in the Post:
- "'The president has said he will find a solution for all of these "wonderful" people,' Garaufis said icily, referencing a presidential tweet. 'What I want to know is, what's the hurry?'"
- "'You work for the president, and so you would know if his commitment was going forward.'"
- "'This is a democracy, these people have thrived in America, and you can't just come into court and espouse a position that is so heartless.'"
I am appalled, and feel the need to respond — not on the government lawyer's behalf, but on my own as a member of this democracy:
Dear Judge Garaufis:
You ask "what's the hurry?" Many others would ask, "What took so long? Why has it taken so many months to dismantle a program that had no statutory basis, that abused executive authority, and that trod so heavily on the prerogatives of granted to the Congress under Article I of the Constitution?"
You say that this is a democracy. Undoubtedly so, but we are also a nation of laws. You, as a jurist, are supposed to uphold the law, not use your position as a bully pulpit to express your personal, emotive, views. It makes one question your fitness for the position of district court judge. You may have become accustomed to being treated as a supreme being by those who defer to you in your courtroom, but do not forget that in this democracy, you are a servant of the law and the people.
You are quoted as saying that as a "human and American" you disagree with dismantling the program. I, too, am a human and an American, and disagree with you wholeheartedly. And, apparently unlike you, I know more than a little about the causes and effects of illegal immigration. One of the things I know, absolutely, is that the DACA program was a magnet for the further influx of vulnerable minors. Don't believe me? Take a look at the stats, which clearly show the rise in minors and family units that illegally flooded across the border starting with the rumors and then the reality of Obama's announcement of DACA.
What do you think will happen if DACA is extended, or a "Dreamers" amnesty enacted? What do you think is happening right now? The flood of aliens, including once again large numbers of families and minors, has already resumed in hope and anticipation of getting in on the amnesty by means fair or foul. What, judge, is Solomonic about such a policy? Are you so abysmally ignorant of the risks faced by children whose parents smuggle them 1,600 miles across jungle, mountain, and high desert badlands, led by cartel smugglers and traffickers who see them as cargo — or worse, as prey?
You take the opportunity, sitting in your robes on a raised dais, to abuse and belittle the government lawyer who stands before you, suggesting that he personally hears the voice of the president whispering his intentions into his ear, which you most certainly know cannot be true.
What is incontestably true is this: You were elevated to your position not to render your personal views on any matter before you, but rather to follow the law, faithfully and impartially. You have already proven beyond any doubt that you cannot do so.
Recuse yourself.