Judge Judy became a daytime TV icon by upbraiding defendants; Judge Frank Caprio rose to fame by showing them compassion. Caprio, whose courtroom proceedings regularly air on the show “Caught in Providence,” has become an Internet superstar by demonstrating that there exists an ample space between the letter of the law and the sentencing phase for a little warm common sense. Among other examples, he laughed out of his court a ticket written two seconds before a car would have been parked legally. A mother whose son had been killed earlier that year was also shown leniency.
The Rudy Giuliani wing of the conservative movement likes to wail that we are “a nation of laws, not men,” and they’re right about that. But America is also vastly over-governed, to the point that one study found the average American commits three felonies a day. If we’re all criminals, then we can all be hauled into court and that puts us at the mercy of men like Judge Caprio, who must exercise their reason and decide whether a particular law is worth enforcing. I don’t see many law-and-order types clamoring for clampdowns on speeders or building-adjacent smokers because those statutes are understood to be too officious, too punitive, too out of step with the realities of everyday life.
After Donald Trump signaled he was repealing Barack Obama’s Deferred Action for Childhood Arrivals (DACA) initiative, which defers and de-prioritizes the deportation of illegal immigrants’ children, defenders of the decision shrugged that Trump was merely pushing back against an Obama power grab and enforcing the law as it was intended. Indeed he is. But the president also has wide latitude in deciding which laws —out of literal mountains— on which he decides to focus. Immigrants who qualify for DACA must show exemplary behavior and estimates suggest they commit crimes at lesser rates than native-born citizens. The infractions for which Trump wants to hold them accountable were committed by their parents. “Sins of the father” justice belongs in the Old Testament, not American jurisprudence. Yet, this is where Trump has decided to pull on his tough-on-crime cape?
Aha, say DACA opponents, but ending DACA serves a greater legal good because it creates a deterrent for criminally immigrating to the United States. The message it sends is: “No, even your well-behaved kids won’t get a university education here, so don’t even try to slip in.” That’s certainly a valid argument, but it strikes me as wholly unnecessary. Trump’s other anti-illegal immigration measures — heightened border enforcement, expeditious immigration courts, incendiary rhetoric — have sunk unlawful crossings over the U.S.-Mexican border to their lowest point in 17 years. Why not take the win? Why not pursue juicier and more-outrageous targets like sanctuary cities and leave the kids alone?
There is one, unavoidable, overarching problem with DACA that must be addressed: its implementation was unconstitutional. Faced with an arms-linked Republican House of Representatives, President Obama created DACA unilaterally, despite the Constitution reserving the power of naturalization to Congress. It was a galling claim of fresh executive power — the president could now effectively point at a class of alien and legalize them by continuously deferring their deportation — and when Obama tried to go even further by ordering the protection of some alien parents, he was smacked down by Andrew Tanen, a federal district court judge in Texas.
It’s one thing to forgive children for sins they didn’t commit; it’s another to elevate the president to a kind of supreme arbiter of immigration who may abrogate laws at will. But then the solution isn’t to roll back DACA. It’s for Congress to pass it, the president to sign it and everyone to move on. If Trump wants to posture as a law-and-order sort, I spent four-and-a-half hours violating speed limits in three different states recently. Haul me downtown and let the children stay.
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