Some Common Sense Constitutional Law: The DACA Issue

March 2, 2015 § Leave a comment

I am tired of watching and listening to politicians with serious looks on their faces repeating the asinine claim that Barack Obama has violated the Constitution of the United States by issuing an Executive Order entitled “Deferred Action for Childhood Arrivals”, usually abbreviated as DACA.

What is DACA?

Here is what DACA provides:

“You may request consideration of DACA if you:

  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012, meaning that:
  • You never had a lawful immigration status on or before June 15, 2012, or
  • Any lawful immigration status or parole that you obtained prior to June 15, 2012, had expired as of June 15, 2012;
  1. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Educational Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  2. Have not been convicted of a felony, a significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.”  [Copied from posted online information from the U.S. Citizenship and Immigration Services]

What does the Constitution Provide?

Article II, Section 2.3 provides, in pertinent part, “. . . he [referring to the President of the United States] . . . shall take care that the laws are faithfully executed . . . .”  That’s it.  That’s all it says.  The President plainly has the responsibility for faithfully executing the laws.

So, Has President Obama Violated the Constitution?

Now answering this question requires two things:  a. Some common sense and b. Rudimentary understanding of basic math.  According to FACTTank, a publication of PEW Research, in 2012 there were 11.2 million undocumented aliens living in the United States.  FactTank

President Obama has doubled the number of Border Patrol agents, so there are now 21,000 of them.  If everyone of those agents was relieved of his or her duties and assigned to rounding up 11.2 million aliens, each one would have to grab 533 1/3 aliens.  Then, assuming that 200 aliens could be packed into each bus, each agent would need 2.9 buses, a total of 58, 800 buses, to haul those aliens back to Mexico, and various other countries in South America, as well as the other places throughout the world from which they immigrated.

Now, given the apparent IQ of some of these constitutional strict constructionists who have been braying about this, I assume they will promptly direct their staff to begin drafting an appropriate law to carry out this plan.  I hope, however, that we still have enough elected officials with enough brains to recognize that some picking and choosing of rational priorities would be a better idea.  The truth is that laws are not, and cannot be,  enforced without some rational and sensible discretion by the enforcers.  Faithfully executing laws does not mean that law enforcement cannot be done selectively if the criteria for doing so are reasonable and consistent with the purpose of the law.  No court has ever held otherwise because such a holding would impose an impossible degree of blind obedience inconsistent with reason.

Every traffic violation is not prosecuted.  Sometimes you get a warning ticket.  Police Departments make discretionary choices about enforcing criminal laws.  Some criminals are not prosecuted in exchange for snitching on other criminals.  Murders and assaults are given more attention than broken windows due to errant baseballs.  Some states have decided not to enforce marijuana laws and the Justice Department has, so far, not reacted as if they were faced with an insurrection.  There is still a federal law prohibiting possession of marijuana, but no one seems interested in starting Civil War II about the matter.

Prosecutorial discretion is, and has always been, an integral part of the criminal justice system.  I can think of no reason why the enforcement of our immigration laws should be treated with less rationality than our criminal laws.  Discretion can be, and sometimes is, abused and exercised in corrupt ways.  It should be judged, like all governmental action, according to its apparent goals and the motivation for its exercise.

So, what are the obvious goals of DACA?  First, to avoid punishment of innocent children who have done no harm.  Second, to free immigrant families from living in the shadows in constant fear of being torn apart when a child is threatened with deportation.  Is a dangerous precedent being set?   Are we in danger of freeing our President from the limits of a constitutional democracy?  I don’t think so.

President Obama has repeatedly urged the Congress to preempt his executive order by enacting laws that will establish standards for remaining in this country.  It is important to note that DACA defers action.  It does not grant citizenship.  It confers no permanent status.  It is what it states:  A temporary measure to prevent irrevocable damage to innocent people while Congress considers and designs an overhaul of our immigration laws.

Everyone who has given the issue any serious thought recognizes that we cannot expect to deport all undocumented aliens.  Many of them have family and business ties to this country as a result of residence here for decades.  To appreciate the numbers we are considering:  The number of undocumented aliens in this country is near the total number of people mobilized into U.S. military forces at the height of WWII.  Numbers


This is not, at least to me, a difficult or complicated question.  I know a federal judge in Brownsville has ruled that Obama has violated the Constitution.  I have hung around enough courthouses to pay little attention to that fact.  There are Clarence Thomas’s in black robes on lots of benches.  It is only a 50/50 bet that Obama’s lawyers will win this argument.  There are panels of the 5th Circuit just as nutty as the Brownsville judge, and the selection of panels is a crap shoot.  I have no way of predicting how this issue will be decided, or how long it will take to reach a final decision, but I have no doubt about how it should be decided.  Given the facts and the numbers, somebody must and will make choices about which people are deported.  The Constitution grants that authority to the President.


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