Jin Kong is a guest research fellow with The Greater Cincinnati World Affairs Council (GCWAC) for the next six months. This fellowship is sponsored by The Mission Continues. Through this fellowship, Kong is researching to gain a better understanding of the populist sentiment towards immigrants in the Cincinnati region. This is one blog of many on his research of immigration and Cincinnati. To learn more about Jin Kong click here.

In 2012, President Obama issued a discretionary directive to the Department of Homeland Security (the “Department”) to defer prosecution of certain undocumented children and young adults.

The then DepartmentSecretary Janet Napolitano issued a memorandum setting forth the specifics of a Deferred Action for Childhood Arrivals (DACA) program which announced steps to forgo the enforcementof “immigration laws against certain young people who were brought to this country as children and know only this country as home.”

The arguments for not enforcing the existing immigration laws were laid out in terms of fairness, efficiency, and justice.

“These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag.  They are Americans in their heart, in their minds, in every single way but one:  on paper.  They were brought to this country by their parents — sometimes even as infants — and often have no idea that they’re undocumented until they apply for a job or a driver’s license, or a college scholarship.”

President Obama, June 15, 2012

What prompted the presidential directive was more than a decade of legislative failure to enact the “DREAM Act” first introduced in 2001. By 2007, the DREAM Act had strong Republican support from Charles Hagel of Nebraska and Richard Lugar of Indiana. But by 2011, the DREAM Act was locked up in the Senate by Republican senators who wanted more enforcement measures. By this time, two states (California and Illinois) had independently recognized some form of legal status for illegal immigrant students to be eligible for scholarships.

President Obama in 2012 challenged the immigration system as a “broken” system and argued that enforcement resources ought to be allocated in the right places to prioritize border security, increase border patrols, and his agency should focus on prosecuting criminals rather than students. He promised that those individuals who meet the criteria will enjoy “temporary relief from deportation proceedings and apply for work authorization.” Mr. Obama made it clear that it is not an amnesty program, nor is it immunity.

“This is not a path to citizenship.  It’s not a permanent fix.  This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.  It is the right thing to do for the American people.”

In 2014, President Obama tried to expand the DACA program for parents. This new Deferred Action for Parents of Americans program (DAPA) was immediately challenged by twenty-five (25) states in the Southern Federal District Court of Texas. The District Court issued a preliminary injunction to stop DAPA. The Obama administration appealed and the Fifth Circuit Court of Appeals affirmed the District Court’s decision.

The Supreme Court’s decision was more interesting. The Court raised sua sponte (on its own accord) the constitutional issue of whether President Obama violated the Take Care Clause of the Constitution, Art. II, section 3, which states: “[the President] shall take Care that the Laws be faithfully executed …”

The Supreme Court had raised the issue that qualifies the President’s executive power. This on its face seems an attempt to curtail the growing executive power held by the President’s office.

Historically, the “Take Care Clause” was declared at the North Carolina ratifying convention as one of the Constitution’s best provisions. Its basis in English law forbids the Crown from dispensing or suspending the law. George Washington observed his presidential duty to “take care” of the execution of federal laws and stated that “to permit [the laws] to be trampled upon with impunity would be repugnant to that duty.” Under these parameters, the President has a wide interpretative discretion in deciding how and when to enforce. As President Obama pointed out: DACA“is a temporary stopgap measure ….  It is the right thing to do for the American people.” And President Trump, to his amazingly wonderful talent for all things, has deemed DACA no longer as the right thing to do. As noted that the President possesses wide discretion. Trump’s decision is legally defensible as Attorney General Jeff Sessions pointed out in his recent memo advising the Department to rescind the 2012 DACA policy.

Constitutionally, the President’s wide discretion over immigration policies seems undisputed. It traces its roots to the law enacted in 1888 giving the President power to deport all aliens judged to be dangerous to the peace and safety of the United States. The Chinese Exclusion Case of 1889 further expanded the presidential discretion as the Supreme Court gave deference to the political branch and claimed that the power of exclusion [of aliens] is an incident of sovereignty delegated by the Constitution.

But ethics are not necessarily the same as abiding by the law; and the Constitution is not merely a document that specifies legality.

President Obama’s moral exercise of discretion to apply a temporary waiver seems a permanent reality; no one believes Congress will ever come to do anything. On the other hand, it is cruelto break up families and is economically indefensible to waste resources on deporting good people while criminals escape attention for the political opportunity.President Trump can’t possibly have made this decision based on his years of business experience?

So, it seems the American representative democracy now has a choice in how we want to be seen as a steward of progress. Are we willing to dispense with morality and enforce laws for want of abstract sense of national supremacy or narcissistic identity; or are we willing to demand morality and legislative responsibility to do the right thing?Either way, it is up to Congress to answer this very essential question of our American experience for the want of exceptionalism or indolent mediocracy. As with all things in life, a choice to make for the Dreamers.

The blog is in part of the Mission Continues blog series, written by Jin Kong and therefore all words and thoughts are his own and not a reflection of GCWAC. GCWAC nor Jin Kong owns any of the photos included. 

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