Since the 2016 presidential election, the American landscape has been riddled with one controversy after another. Rolling back the Deferred Action for Child Arrivals (known as DACA) was just next on the list. We’ve witnessed the legal woes of the President’s travel ban. The country has been captivated by the reversal of a number ofObama-era initiatives: the failed attempt to repeal and replace the Affordable Care Act; the return to mandatory minimum sentencing and its companion, the failed war on drugs; and rescinding efforts to make gun purchases and ownership safer. Each controversy has controlled the tenor of the American dialogue. Each has widened the deep chasm so ever-present in America.
The administration’s reaction to Charlottesville and the pardon of Joe Arpaio are two of the more relevant controversies that bear witness to the conversation about DACA. In Charlottesville the question of confederate history and heritage touched on the age-old American slavery conversation. When former Maricopa County Sheriff Joe Arpaio was pardoned shortly afterwards, the question of race was highlighted yet again in the national dialogue. Many Americans profess that the sin of slavery has nothing to do with the privilege enjoyed by the descendants of the slavers and others who benefited from slavery. If that is so, how can the recipients of the DACA program bear the burden for the sins of the parents that brought them to the United States illegally?
Could it be that we are simply talking about a message from the White House that says race does matter? Linking recipients of DACA to crime and taking jobs from Americans are myths that the administration uses to mask the true nature of its agenda – implementing a restrictive immigration policy that limits entry of specific immigrants and increases removals/deportations. The images conjured by these myths tend to focus on immigrants from south of our border. While the number of DACA recipients are frequently bantered about, little is ever mentioned about the diversity of that group.
If the administration and voters in the United States are willing to posit that the children brought into the country by their parents without inspection or admission, when the child was a minor, somehow makes them responsible for the actions of the parent, then the same should apply to the debate regarding the responsibility for slavery. Want to keep the confederate flag and statutes as a valid claim to your heritage? Fine, just admit in your very next breath that you accept the role your ancestors played in slavery and become an active participant in the conversation about your responsibility for their actions and how those actions continue to affect generations of Americans. When that is done, America can move forward. Until then, the American narrative remains muddled and riddled with myth.
When the Attorney General of the United States says that DACA grants legal status to the recipients of the program that is misleading and simply not true. That may be the myth that a significant number of Trump supporters believes and the pandering the AG will do to garner support for yet another rollback of an Obama initiative but the truth is much simpler. DACA allows the recipient to be “lawfully present” in the United States, much like you would be lawfully present if you arrived at an airport, met with a Customs and Border Protection officer and was granted entry into the United States. This does not mean the person has been granted amnesty, citizenship or a path to citizenship. Simply put, the person has no legal status and eligibility can be rescinded at any time. In addition, in this case, the Department of Homeland Security also requires renewal of each recipient’s enrollment in the program every two years.
It should not come as a surprise that DACA recipients are granted a longstanding form of relief from deportation – “deferred action” (clearly the first two words of the program’s name). Deferred action is not an unconstitutional exercise of authority by the executive branch as stated by Attorney General Sessions. Deferred action is, essentially, prosecutorial discretion exercised by immigration authorities in their decision making regarding initiation or termination of deportation proceedings. The use of an executive order to provide clear guidance on the use of deferred action in cases involving immigrants brought to the United States as children doesn’t make the exercise of this discretionary tool unconstitutional or an executive overreach. In reality, DACA is as constitutional as the guidance recently provided to federal prosecutors by AG Sessions where he all but eliminated charging and sentencing discretion in the Department of Justice.
Prosecutorial discretion is common practice in every corner of the enforcement arena. Local police officers exercise discretion when they don’t issue a speeding ticket. Prosecutors exercise discretion when they choose how to charge those who have been arrested. Judges use discretion in sentencing decisions.
In contrast, Joe Arpaio’s exercise of discretion in Arizona led to his conviction for criminal contempt. That conviction stemmed from the continued violation of a court order enjoining Arpaio’s department from targeting Latino drivers, a discretionary practice viewed as racial profiling. Racial profiling – a violation of the promise of equal protection and freedom from unreasonable search and seizure – is unconstitutional. Yet, President Trump used his discretionary powers to pardon Arpaio.
In his announcement that DACA was being rescinded, Sessions said, in essence, that President Obama claimed a sweeping discretion to suspend federal law when he issued guidance regarding DACA in 2012. Sessions went on to say that, in doing so, the entire legislative process became little more than a pretense. Here’s a pretense: our legislative body has had multiple opportunities to address dreamers but, beginning in 2001, multiple bills failed to get the votes necessary to create the clear legislative authority the administration claims to seek.
Pretense is when the legislative body is more interested in getting re-elected than legislating or when its leadership is proud of being a “guardian of gridlock”. When the single most important thing a legislative body can achieve is making a president a one term president, the legislative process has certainly become little more than a pretense.
What a nightmare!