We live in a country founded on the principle that how a law is made matters, with a government carefully designed to avoid the volatility, uncertainty and ultimately injustice that comes from arbitrary rule.
All the reasons for that principle and that design are on display with the Obama-era policy known as DACA, which the Trump administration said Tuesday it is rescinding.
It is difficult to pass a law in our system of government, and intentionally so. The idea is to prevent not only the passage of bad laws but the repeal of good ones. The trade-off is that some bad laws are hard to repeal (ahem, Obamacare) and some good ideas are hard to pass.
DACA, which stands for Deferred Action on Childhood Arrivals, is one of the latter. It makes little sense to throw out people who didn’t choose to come here, legally or not, who have few or no ties to the country of their birth, and who have been educated here at the taxpayers’ expense.
But as this week’s actions by the Trump administration show, the way to accommodate them is not by ignoring immigration laws but by changing them.
The opposite of our slow-moving, difficult but relatively permanent lawmaking process is rule by the executive branch — the president and the bureaucracy. It moves faster because it need not wait for debate. It also need not take account of other considerations, such as how a particular idea will work in the broader context. In this case, that means the bigger-picture need for an immigration reform that balances compassion for those who have been living here illegally with justice and border security to prevent the problem from mushrooming (again).
Those were among the temptations that led President Barack Obama to implement DACA in June 2012 (another obvious one being politics, as he sought re-election that year). But here, too, is a trade-off. When he left office and Donald Trump took over, there was no check against the new president simply changing the policy.
There was also less legal ground for the policy to stand on when challenged in court. DACA was likely to be struck down by the judiciary as an unlawful use of executive power and then ended immediately, rather than after six months under the Trump policy. Those criticizing Trump as simply cruel or mean-spirited tend to gloss over both of those elements.
They also tend to ignore that, precisely because those affected by DACA, the so-called “dreamers,” are such a sympathetic group, their problem cries out for being addressed legislatively. Not only is a law more permanent than an executive order, but a popular element of immigration reform can be the first building block for a broader overhaul. As sympathetic as the “dreamers” may be, they represent only about 800,000 of the estimated 11.3 million illegal immigrants in the United States. If executive action won’t suffice to deal with them, it certainly won’t suffice for the other 10.5 million — whether the executive wants to grant them amnesty or crack down on them. Congress needs to act.
Public sentiment supports action here by Congress, even if public trust in Congress to do its job is deservedly low. Then again, our system also provides an opportunity to replace ineffective legislators. The next one comes in 14 months.
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