Zombie Government

February 21, 2017 § 1 Comment

The dictionary describes a zombie as “. . .  a creature capable of movement but not of rational thought. . . .”

Prosecutorial Discretion

The essential responsibility of those charged with the supervision of law enforcement in a democratic republic like ours is prosecutorial discretion.  District Attorneys, County Attorneys, US Attorneys and the Attorney General of the United States are obligated to use judgment informed by principles of justice and fairness to impose  guidance and limits to those entitled to use force to kill or capture people suspected of unlawful acts and omissions.

This feature of law enforcement is necessary because it is impossible and undesirable to use the criminal justice system  to proceed with equal zeal to arrest the hungry person who shoplifts a loaf of bread  and the bank teller who embezzles thousands of dollars.  Priorities are necessary as a matter of justice as well as efficiency.

The Immigration Problem

Nowhere is this fundamental principle of criminal justice more obviously important than in our response to the problems of immigration.  We have eleven million of our neighbors in large and small communities throughout our country who did not comply with the prescribed procedures for becoming citizens.  Many of them have lived and worked and paid taxes and contributed their support to our country for periods of time varying from thirty or forty years to a week or a day.  Many have children and grandchildren who are citizens because they were born here.  Many have formal permission to be here – holders of “green cards” or visas entitling them to stay here for extended periods of time to attend schools, work as doctors, nurses, teachers, scientists, engineers – the gamut of useful employments.

The classification of these “undocumented aliens” is a daunting task because it should be done with gumption, fairness and discretion.

Congressional Paralysis 

This classification process should have been done by Congress.  It was not done for two reasons:  First,  a substantial segment of Republican members of both the House and Senate were more interested in blocking any significant accomplishment by President Obama than they were in performing the job which they had sworn to perform.  Second, a sizable group of those GOP elected officials were unwilling to agree to any rational arrangement for deporting some aliens and granting  conditional permission for many of them to remain as citizens of the United States.  They were more interested in appealing to  the bigotry and hatred  of some of their constituents than in designing a reasonable and humane immigration law.

As a consequence of this legislative dereliction of duty, the task of seeking a solution to the immigration problem devolved to the President, who sought to create some degree of stability and rationality through executive orders.

As a result of the recent presidential election that responsibility is now dependent on President Donald Trump.  His recent blunderbuss mishandling of travel from five predominantly Muslim countries bodes no  confidence he will respond to this immigration issue in a rational or just way.

The Horrors of our Past as Cautions for out Present

Our history is littered with examples of how not to deal with problems like these.  It began with our treatment of the Indian population that inhabited this land for thousands of years before our ancestors arrived.  With many fits, starts and stumbles we ultimately solved this problem with genocide, almost destroying the Indian culture and most of its population.  As we engaged in that atrocity, we simultaneously imported a segment of our population from Africa, against their will; then enslaved them and afforded them the right of citizenship  only after a war than came close to destroying our nation.

In the 1940’s we imprisoned Japanese people living along the West Coast, regardless of their citizenship, because we let anger and fear overpower our Constitution and the principles upon which our country was founded.

At different times in our past we have discriminated against immigrants from China while simultaneously using many Chinese immigrants as close to slave labor to build our railroads.  For awhile we discriminated against the Irish who fled Ireland for America to escape a famine. Later we discriminated against immigrants from Eastern Europe and from Italy.  These examples of bigotry were some what moderated by the fact that, until the late 1900;s we had a sparsely populated frontier to which the victims of our prejudices could flee.  That frontier has now been closed for over a hundred years and is no longer available.

Tu summarize, we have had several examples to warn us against wholesale mistreatment of people because of generalized classifications.  We should not add another chapter of hateful abuse to our already embarrassing past.  Simple rules should guide us:  Punishment should be administered based on individual wrongdoing; not like an indiscriminate scythe, wounding the innocent along with the guilty, the children along with their parents and the worthy like the unworthy.  Children should not be denied the stability of a family.  Long time residents should not be treated the same as recent arrivals.

Statements like “They are all here illegally, therefore they are all equally guilty of a crime and all should be treated as criminals.” is the idiotic declaration  of a simpleton; not a person with the mental equipment necessary for serious matters.

The Gathering Storm

Today, February 21, 2017, we have the first evidence that, having had his first ham-handed effort graded a failure by four federal judges, President Trump is revising his directions, while still, like a four-year-old child snuffling after a scolding, insisting that his rejected effort was perfectly crafted and expertly executed.  This is not encouraging  because it indicates he is uneducable, even by experience.

I have not read the new Executive Order but, based on the commentary about it, it apparently preserves the DACA (Deferred Action for Childhood Arrivals)  exemption in one place but, in another paragraph seems to call for deportation to all who have broken the law.   It is not clear whether “broken the law” in this context means committed a crime after arriving in the U.S. or committed a crime by crossing the border into the U.S. without legal permission.


Regardless of the ambiguity of the new Executive Order, its application to the fate of the eleven million undocumented people in our country will depend on the way the Justice Department and the other government agencies involved in the enforcement of our immigration laws exercise discretion concerning the timing and choices based on that Order.  If they proceed, willynilly, sending ill trained armed officers into communities all over our country with vague orders to arrest and detain everyone suspected of being here illegally, America will become a dsreputable example of a zombie nation, where the imposition of punishment and harm are meted out without regard to justice, fairness, rationality or morality.

We have already tarnished our reputation by turning a blind eye toward the abuse of Palestinians by the Netanyahu government in Israel.  If we apply that same level of abuse to millions of men, women and children living in our own country, we will forfeit any right to boast of our standing as a beacon of justice and hope for the rest of the world.

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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