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Immigrant Children and the Rule of Law

Earlier this week, Attorney General Jeff Sessions announced that in six months, the Department of Justice will begin the long process for deportation proceedings against 800,000 young people who came to America as babies and young children in the care of their parents and others because those entries into this country were and remain unlawful.

When President Barack Obama signed numerous executive orders attempting to set forth the conditions under which illegally immigrated adults whose children were born here could lawfully remain here, he was challenged in federal court and he lost. Sessions believes that the government would lose again if it declined to deport those who came here illegally as babies and young children.

Here is the back story.

Shortly after President Obama formalized two programs, Deferred Action for Childhood Arrivals (commonly known as DACA) and Deferred Action for Parents of Americans (commonly, DAPA), in a series of executive orders, the U.S. Court of Appeals for the 5th Circuit ruled that DAPA — the orders protecting undocumented immigrants who are the parents of children born here — was unconstitutional.

Before signing his executive orders, Obama tried to persuade Congress to amend federal immigration laws so as to permit those who came here illegally and bore children here and those who came here illegally as infants to remain here with work permits, high school diplomas, Social Security numbers, jobs and other indicia of stability and permanence. After Congress declined to vote on the Obama proposals, he authored his now-famous DACA and DAPA executive orders. He basically decided to do on his own what Congress had declined to do legislatively.

But Obama’s executive orders were not novel; they merely formalized what every president since Ronald Reagan — including President Donald Trump — has effectively done. Each has declined to deport undocumented immigrants who bore children here or who were brought here as young children. President Obama alone showed the courage to put this in writing, thereby giving immigrants notice of what they need to do to avoid deportation and the government notice of whose deportations should not occur.

Numerous states challenged Obama’s DAPA orders in federal court. The states argued that because they are required to provide a social safety net — hospital emergency rooms, public schools, financial assistance for the poor, etc. — for everyone within their borders, whether there lawfully or unlawfully, DAPA was increasing their financial burden beyond their ability or will to pay. Stated differently, they argued that the president alone was effectively compelling these states to spend state tax dollars against the will of elected state officials. The states also argued that DAPA was such a substantial deviation from the immigration statutes that Congress had written that it amounted to the president’s rewriting the law and thereby usurping the constitutional powers of Congress.

A federal district judge agreed with the states, and the U.S. Court of Appeals for the 5th Circuit affirmed that ruling. That court held that by increasing the financial burden on states against the will of the elected officials of the states, the president had violated the Guarantee Clause of the Constitution — which guarantees a representative form of government in the states, not one in which a federal official can tell state officials how to spend state tax dollars.

It also ruled that by enforcing his executive orders instead of the laws as Congress wrote them — those laws mandate deportation for all who came here illegally, no matter their age or family status — the president was failing to take care that all federal laws be enforced. That behavior, the court ruled, violated the Take Care Clause of the Constitution, which compels the president to enforce federal laws as they were written, not as he might wish them to be.

The Supreme Court declined to intervene by a 4-4 vote, thereby permitting the 5th Circuit decision to stand undisturbed.

When Sessions announced this week that DACA will not be followed after March 5, 2018, he said he is confident that DACA is unconstitutional for the same reasons that the courts found DAPA to be unconstitutional. Yet there are moral, constitutional, legal and economic arguments on this that will be an obstacle to the cancellation of this long-standing program.

Morally, most of the beneficiaries of DACA are fully Americanized young adults who know no other life but what they have here and have no roots in the countries of their births. Many are serving the U.S. in the military. Constitutionally, DACA has effectively been in place since 1986, and 800,000 people younger than 40 have planned their lives in reliance upon it. Legally, once a benefit has been given by the government and relied upon, the courts are reluctant to rescind it, even though the 5th Circuit showed no such reluctance.

Economically, the summary removal of more than three-quarters of a million people from the workforce would have serious negative consequences for their employers and dependents and for delicate economic forces, and there would be negative economic consequences to the government, as well, as each claimed hardship case — each person whose deportation is ordered — is entitled to a hearing at the government’s expense.

Now many Republican and Democratic lawmakers in Congress want to make a close version of Obama’s executive orders with respect to immigrant infants (DACA) the law of the land — something they declined to do when Obama was president. Were this to happen, the tables would be turned on Trump. He would be confronted with the constitutional duty of enforcing a federal law that he has condemned.

Would he live up to his oath of office?

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Andrew Napolitano
Judge Andrew P. Napolitano is the author of seven books on the U.S. Constitution, two of which have been New York Times best sellers. Judge Napolitano has been Fox News’ Senior Judicial Analyst since 1998 and he is nationally known for watching and reporting on the government as it takes liberty and property.