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Friday, December 29, 2017

Why DACA Must Go

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

The Justice Department and the Department of Homeland Security released a report on incarceration of foreign-born population, and the findings of the report are that more than 1 in 5 of all federal inmates in the U.S. Bureau of Prisons are foreign-born.  94% of those people who were not born in the United States and in federal incarceration were also in the country illegally.

The report also found that about two-thirds of all immigrants in the custody of U.S. Marshals Service were in the United States illegally.

“This shows undeniably the need to secure the southern border with a wall to prevent many of the crimes from occurring,” a senior administration official said.

A senior administration official cited U.S. Sentencing Commission data from fiscal year 2016 that found almost one-third of drug trafficking crimes and more than two-thirds of drug-use crimes came from foreign-born offenders, both legal and illegal.

American citizens take this issue seriously, which is one of the reasons that Donald J. Trump was elected as President of the United States in 2016.  The issue that launched him to the top of the ticket was immigration, and his desire to secure the border.

A significant move that will help us in getting illegal immigration under control in this country would be the elimination of the Obama administration's unconstitutionally instituted Deferred Action for Childhood Arrivals (DACA) program, which shields younger illegal aliens from deportation, claiming they are here by no fault of their own and that having grown up in the United States, it would be inhuman to deport them back to the country from which they came because they know nothing about that country, nor speak the language.

Aware of Trump's plan to tackle the illegal alien issue with both barrels firing, the Democrats have been relentless in their propaganda campaign, and using the court system to place obstacles in the way of the Trump administration's efforts to enforce constitutional immigration laws that are on the books.

On Dec. 20, in an unsigned, four-page opinion, the Supreme Court struck down a lower court order that severely burdened efforts by the Trump administration to end the Obama administration’s Deferred Action for Childhood Arrivals program.

This is good news, a helpful sign that the Supreme Court will not give unelected judges carte blanche to hamstring the federal government’s legitimate efforts to enforce immigration law restrictions, consistent with the current statutory law.

The Democrats will parrot the concept that we are a nation of laws, but when the rule of law does not fit with their agenda, they are willing to spit in the eye of the rule of law, using the opinions of activist judges legislating from the bench to do so.

Article I, Section 8 and Article I, Section 9 gives the federal government legislative authority over naturalization, and prohibiting certain persons from entering the United States.

From a common sense point of view, immigration laws are in place because there are people who do not have the best interests of the United States in their hearts who are crossing into this country.  While we don't know how large or small the percentage of people are (in the overall population of illegal migrants) who we wish to do harm to Americans in our country, the reality is that those people exist.  Mixed into the illegal alien population, whether the Democrats are willing to admit it, or not, are the sick (TB, Scabies, Small Pox, Hand Foot and Mouth Disease, etc.), gang members, drug dealers, rapists, murderers, terrorists, and so forth.

As the common argument goes, "Why do you lock your door of your home?" It's not because you hate everyone walking around outside.  In fact, most of us believe that most of the people who are outside of our homes are fairly decent people.  But, among those walking the sidewalk in our neighborhoods, and often we are not sure who they are because the obvious signs are not always there, are those who would be willing to enter our homes and harm our families.  The least we can do is at least lock the door.  Having a loaded gun ready for self-defense would be an additional precaution.

The emotional nature of the Democrat's screams is that we have to take care of these people illegal coming into our country, because our boat of liberty can take them away from the island of misery they are trying to escape, and take them to a better place.  Problem is, the boat is only so big, and legal immigration is tough enough.  With all of the illegals piling on, the boat is sinking.

DACA was established in 2012 by a Department of Homeland Security memorandum. It applied to a large number of young illegal aliens who met certain conditions: they illegally entered the U.S. before the age of 16; were under the age of 31; had “continuously” resided in the U.S. since June 15, 2007; and were in school, graduated, or honorably discharged from the military.

DACA provided a period of deferred action (a promise that the alien would not be deported) as well as access to certain government benefits (including work authorizations, Medicare, Social Security, and the earned income tax credit). The period of deferred action was initially for two years, but that period was extended to three years by a second DHS memorandum on Nov. 14, 2014.

Since President Obama could not get the Republicans in Congress to work with him, he decided to do it himself, and illegally put DACA into play without Congress through an executive order.

When President Trump approached this issue, instead of simply eliminating the program with an executive order (of which he could do, since it was established by executive order), his administration gave Congress the opportunity to look at the issue and make a decision. It is, after all, supposed to be a legislative issue.

On September 5, then-acting DHS Secretary Elaine Duke issued a memorandum terminating the DACA program and all benefits provided under it effective March 18, 2018, unless President Donald Trump provides another extension of the program or Congress passes a bill addressing the issue.

The acting secretary stated that her determination was based in part on the attorney general’s conclusion that DACA was initiated unlawfully and likely would be enjoined in potentially imminent litigation.

The liberal left Democrats went into action, immediately, filing five lawsuits against the September 5th memo.  The cases were filed in a federal district lower court in California (because the Democrats know that is where the federal court system is most swarming with leftist judges).  The suits argued that the determination violated the Administrative Procedure Act (which governs the way in which federal administrative agencies may propose and establish regulations), and denied affected aliens due process and equal protection under the law.

The Administrative Procedure Act can be changed by the Republicans with ease, and personally, I don't believe their argument that the move violated the act was valid, anyway.

As for the due process and equal protection arguments, the "due process and equal protection under the law" clauses of the 14th Amendment addresses the States, and reads as follows:  "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Article IV., Section 2 reads: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

There is a purposeful separation between citizens, and non-citizens.  "Immunities" is a key word, here.  In the 1828 Webster's Dictionary, "Immunity" is defined as:
immunity: IMMU'NITY, n. [L. immuinitas, from immunis, free, exempt; in and munus, charge, office, duty.]
1. Freedom or exemption from obligation. To be exempted from observing the rites or duties of the church, is an immunity.
2. Exemption from any charge, duty, office, tax or imposition; a particular privilege; as the immunities of the free cities of Germany; the immunities of the clergy.
3. Freedom; as an immunity from error.
In reference to Article IV., the Founding Fathers feared that the federal government would illegally infringe upon the individual rights of citizens. The federal government was established to handle external issues.  Any laws regarding our rights were only to be allowed by local governments, such as State legislatures, or county and city councils.  The words "privileges and immunities" in Article IV. were specifically addressing the need to protect individual rights of citizens from government infringement.

Federalist 45 by James Madison explains: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce[.] ... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

After the conclusion of the War Between the States, while the federal government recognized the newly emancipated slaves as citizens, and that their rights were theirs just as much as any other citizen's rights, the former confederate States were not so inclined.  So, the 14th Amendment was written to ensure it was understood that the newly emancipated slaves were both citizens of the country, and their States, and that the States could not use legislation to treat these citizens in any manner different than other citizens.

Persons who have illegally entered the country, and have not committed to "full jurisdiction" of the United States (meaning "full allegiance") are not covered under the promise of receiving all privileges and immunities of the several States.  In short, the argument against DACA being repealed has no constitutional leg to stand on based on the black letter of the law.  However, the Democrats don't care what the Constitution says.  They will use implied law and the interpretation of the Constitution by activist judges to build their case.

The reality is, we need to come up with specific rules regarding the Dreamers and other migrants who have entered the country, and follow them.  There needs to be a fundamental path to legal status, and perhaps naturalization, but Congress should not give preferential treatment to the children of illegal aliens over those who followed immigration rules.  The president, as we saw with Obama, cannot simply wave the rules and let anybody in, either.  We have people coming in who got here just because they knew the right words to say.  Just because a migrant states they are a victim of political persecution, it doesn't mean that they are.  How do we distinguish between those who are truly wanting to be an American, and those who are dangerous to our society, if we don't enforce immigration law, we don't have a physical barrier at the border to assist in slowing the flow of illegals, and if we aren't willing to vet each and every potential immigrant?  We live in an age of technology, and yet we haven't used technology to secure the border, to deal with the backlog of people trying to legally enter, or to figure out if someone is a legitimate refugee.  DACA is not a solution, it is a way to fight the issue from a political standpoint - a tool to pick a fight, in other words.  I get it, among the Dreamers are young people who know nothing but the United States, but why should they get preference over people who followed the rules?

According to the Daily Signal, in the legal fight, last October:
... a district court issued an order imposing burdens on the government as obstacle to the elimination of DACA.  The court ordered a release of all “emails, letters, memoranda, notes, media items, opinions and other materials” that fell into several broad categories.  The Justice Department unsuccessfully challenged this ruling before the largely liberal 9th U.S. Circuit Court of Appeals, and then appealed to the Supreme Court. 
In its short unsigned opinion, the Supreme Court held that, before imposing its heavy-handed documentary request, the district court first should have ruled on the government’s two “serious” threshold arguments—that the decision to terminate DACA was unreviewable under the Administrative Procedure Act because it was “committed to agency discretion,” and that the Immigration and Nationality Act deprived the lower court of jurisdiction. 
As the court explained, “[e]ither of those arguments, if accepted, likely would eliminate the need for the [d]istrict [c]ourt to examine a complete administrative record.” 
Accordingly, the Supreme Court ordered the district court to rule on the government’s threshold arguments and certify its ruling for immediate appeal “if appropriate.” Thereafter, if the case was not dismissed, the district court and the 9th Circuit “may consider whether narrower amendments to the record are appropriate.” The Supreme Court concluded by stating that its order “does not suggest any view on the merits of” the case. 
In sum, although the Supreme Court has removed (for now) one unnecessary burden to elimination of DACA, the final judicial word has not been said. Let us hope that, in considering this case, the federal courts remember that it is their job to construe the law and say what it is—not to impose their subjective immigration policy preferences on the American people.
So, legally, according to the Supreme Court, removing DACA is now possible.  Nonetheless, the Democrats are continuing to do what they can to act as a road block.  If they can't win this fight judicially, or legislatively, they are threatening a government shutdown by refusing to accept any bill or resolution funding the government unless Congress provides amnesty to so-called Dreamers in the budget.

It would be the mess caused by the 1986 amnesty, all over again.  Reagan was willing to sign it because the Democrats said they would secure the border, in turn.  The Democrats reneged on their part of the bargain.

Now, the Democrats aren't even willing to shroud their deception with compromise.  Now, they are demanding they get their way by budgetary gunpoint.

Democrats portray the DACA program as only benefiting those who were a few years old when they came to the U.S. illegally.  The problem is, it opens the door for so many more problems.  Many of the teenagers slipping in under the program have criminal records, are members of violent gangs or drug cartels, or are of middle eastern descent and are a terrorist threat.  Illegal aliens eligible, after all, can enter the U.S. as under the program as long as they came to the U.S. before their 16th birthday and were under the age of 31 as of June 15, 2012.

DACA claims to require beneficiaries to be enrolled in school, graduate from high school, obtain a GED certificate, or receive an honorable discharge from the military; have no conviction for a felony, significant misdemeanor, or three or more other misdemeanors; and not pose a threat to national security or public safety, under Obama the Democrats routinely waived the education (or its equivalent) requirement as long as the illegal alien was enrolled in some kind of program. Only 49 percent of DACA beneficiaries have a high school education—despite the fact that a majority of them are adults.  Besides, we know the vetting process they claim to be using for DACA is not very effective.

In February 2017, after the arrest of a DACA beneficiary for gang membership, the Department of Homeland Security admitted that at least 1,500 DACA beneficiaries had their eligibility terminated “due to a criminal conviction, gang affiliation, or a criminal conviction related to gang affiliation.”

By August 2017, that number had surged to 2,139.

Based on the rules the Democrats have been following, even if a Homeland Security background investigation—which apparently was almost never done—produced substantial evidence that an illegal alien might have committed multiple crimes, the alien would still be eligible for DACA unless Homeland Security referred the violation to state or federal prosecutors and the alien was convicted.

DACA has no requirement of English fluency, either.  The Center for Immigration Studies estimates that “perhaps 24 percent of the DACA-eligible population fall into the functionally illiterate category and another 46 percent have only ‘basic’ English ability.”  That means that only one in four are fully natively fluent in English.

Yet, we are being told DACA is protecting children who don't speak the language of their parent's homeland, and can't be sent back for that reason?

What DACA is really about is providing amnesty to low-skilled, low-educated aliens with marginal English language ability, and then opening up the opportunity for them to sponsor a chain of relatives with similar educational and language deficits (an allowance for extended families of these illegal aliens to profit from illegal conduct) - which imposes a large fiscal challenge on already overly taxed American taxpayers resulting from increased government payouts and benefits.  And, once again, such amnesty is a slap in the fact to legal immigrants who obeyed the law to come here.

In short, what is important here is national security.  Democrats are seeking votes.  They don't care how, or from who, and they are willing to place the safety of the receiving population at risk for their own political power.  One thing is for sure.  If illegal aliens were mostly conservatives, and registered as Republicans once they finally achieved legal status, the Democrats would not only be in favor of building a wall, their strict adherence to immigration law would be even more stolid that what is being proposed by Republicans.

-- Political Pistachio Conservative News and Commentary

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