DACA is well-intentioned, necessary, and unconstitutional

In this Aug. 15, 2017, file photo, a woman holds up a signs in support of the Obama administration program known as Deferred Action for Childhood Arrivals, or DACA, during an immigration reform rally at the White House in Washington. After months of delays, President Donald Trump is expected to decide soon on the fate of so called “dreamers” who were brought into the country illegally as children as he faces a looming court deadline and is digging in on appeals to his base. (AP Photo/Jacquelyn Martin, File)

Judge Judy became a daytime TV icon by upbraiding defendants; Judge Frank Caprio rose to fame by showing them compassion. Caprio, whose courtroom proceedings regularly air on the show “Caught in Providence,” has become an Internet superstar by demonstrating that there exists an ample space between the letter of the law and the sentencing phase for a little warm common sense. Among other examples, he laughed out of his court a ticket written two seconds before a car would have been parked legally. A mother whose son had been killed earlier that year was also shown leniency.

The Rudy Giuliani wing of the conservative movement likes to wail that we are “a nation of laws, not men,” and they’re right about that. But America is also vastly over-governed, to the point that one study found the average American commits three felonies a day. If we’re all criminals, then we can all be hauled into court and that puts us at the mercy of men like Judge Caprio, who must exercise their reason and decide whether a particular law is worth enforcing. I don’t see many law-and-order types clamoring for clampdowns on speeders or building-adjacent smokers because those statutes are understood to be too officious, too punitive, too out of step with the realities of everyday life.

So why are they hell-bent on going after the children of illegal immigrants?

RARE POV: A sadist, not a sheriff

After Donald Trump signaled he was repealing Barack Obama’s Deferred Action for Childhood Arrivals (DACA) initiative, which defers and de-prioritizes the deportation of illegal immigrants’ children, defenders of the decision shrugged that Trump was merely pushing back against an Obama power grab and enforcing the law as it was intended. Indeed he is. But the president also has wide latitude in deciding which laws—out of literal mountains—he on which he decides to focus. Immigrants who qualify for DACA must show exemplary behavior and estimates suggest they commit crimes at lesser rates than native-born citizens. The infractions for which Trump wants to hold them accountable were committed by their parents. “Sins of the father” justice belongs in the Old Testament, not American jurisprudence. Yet, this is where Trump has decided to pull on his tough-on-crime cape?

Aha, say DACA opponents, but ending DACA serves a greater legal good because it creates a deterrent for criminally immigrating to the United States. The message it sends is: “No, even your well-behaved kids won’t get a university education here, so don’t even try to slip in.” That’s certainly a valid argument, but it strikes me as wholly unnecessary. Trump’s other anti-illegal immigration measures—heightened border enforcement, expeditious immigration courts, incendiary rhetoric—have sunk unlawful crossings over the U.S.-Mexican border to their lowest point in 17 years. Why not take the win? Why not pursue juicier and more outrageous targets like sanctuary cities and leave the kids alone?

RELATED: Jeff Sessions announces White House decision on DACA

There is one, unavoidable, overarching problem with DACA that must be addressed: its implementation was unconstitutional. Faced with an arms-linked Republican House of Representatives, President Obama created DACA unilaterally, despite the Constitution reserving the power of naturalization to Congress. It was a galling claim of fresh executive power—the president could now effectively point at a class of alien and legalize them by continuously deferring their deportation—and when Obama tried to go even further by ordering the protection of some alien parents, he was smacked down by Andrew Tanen, a federal district court judge in Texas:

In the present case, Congress has clearly stated that illegal aliens should be removed. Like that at issue in Adams, the DHS program clearly circumvents immigration laws and allows individuals that would otherwise be subject to removal to remain in the United States. … In contrast, the DHS does not seek compliance with federal law in any form, but instead establishes a pathway for non-compliance and completely abandons entire sections of this country’s immigration law.

It’s one thing to forgive children for sins they didn’t commit; it’s another to elevate the president to a kind of supreme arbiter of immigration who may abrogate laws at will. But then the solution isn’t to roll back DACA. It’s for Congress to pass it, the president to sign it and everyone to move on. If Trump wants to posture as a law-and-order sort, I spent four-and-a-half hours violating speed limits in three different states yesterday. Haul me downtown and let the children stay.

What do you think?

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