The Purpose of Process

Jackie Gingrich Cushman
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Posted: Sep 07, 2017 12:01 AM
The Purpose of Process

A quick glance at media headlines might lead one to believe that the decision regarding so-called "Dreamers" and their immigration status is an easy one; that it can be made on the basis of what's right, what would be compassionate, and what the end result would be, without regard to process. But, as often happens, reality is more complex. It's the process as well as the end result that matters. Let's step back and review what's happened.

In the spring of 2011, at a Univision townhall, President Obama was asked about using executive order to change immigration policy. His answer, "With respect to the notion that I can just suspend deportations through executive order, that's just not the case...Congress passes the law. The executive branch's job is to enforce and implement those laws. And then the judiciary has to interpret the laws...for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president."

Eighteen months later, Obama had determined that the end was more important than the means... at least temporarily. On September 15, 2012, he spoke about the "new actions my administration will take ... specifically for certain young people sometimes called 'Dreamers'...you can one day earn your citizenship...this is not amnesty, this is not immunity. This is not a path to citizenship. It's not a permanent fix. This is a temporary stopgap measure...Congress needs to act."

On July 29, Texas Attorney General Ken Paxton and 10 other state attorneys general sent a letter to U.S. Attorney General Jeff Sessions requesting that "the Secretary of Homeland Security phase out the DACA program." It noted that "this request does not require the Executive Branch to immediately rescind DACA [nor does it] ...require the federal government to remove any alien."

This request included the carrot that "If, by September 5, 2017, the Executive Branch agrees to rescind...then the plaintiffs...will voluntarily dismiss their lawsuit currently pending in the Southern District of Texas." And the stick, "otherwise, the complaint in that case will be amended to challenge both the DACA program and the remaining Expanded DACA permits."

This Tuesday, on the deadline, Sessions announced that the program "is being rescinded." He also noted that there was a six-month implementation period set up so Congress could fix this legislatively.

A statement from President Donald Trump noted that he does not favor "punishing children, most of whom are now adults, for the actions of their parents." Trump also reconfirmed Obama's stance in 2011 "that DACA recipients are not enforcement priorities unless they are criminals, are involved in criminal activity, or are members of a gang."

Both Sessions and Trump pushed the problem to the legislature. That's where, in 2011 and 2012, Obama thought it belonged.

Speaker Paul Ryan, R-Wis., echoed Obama's 2011 comments. "However well-intentioned, President Obama's DACA program was a clear abuse of executive authority, an attempt to create law out of thin air...Congress writes laws, not the president."

Ryan also recognized the human element. "At the heart of this issue are young people who came to this country through no fault of their own, and for many of them it's the only country they know," he said. "It is my hope that the House and Senate, with the president's leadership, will be able to find consensus on a permanent legislative solution that includes ensuring that those who have done nothing wrong can still contribute as a valued part of this great country."

Sen. Lindsey Graham, R., S.C., has called on Congress to act this month, requesting that it pass the DREAM Act, a legislative solution to provide legal status to individuals currently covered by DACA.

While this is one more issue to add to Congress' already busy schedule - it's their responsibility, not the president's, to make the laws. The reason that we have a Constitution with checks and balances and a slow process is to create a system that works slowly but deliberately. A dictator could move faster, but the process would be much more dangerous.

Be wary of those who advocate the means as more important than the process, and those who fan the fires of publicity with false information and half-truths, stirring up controversy rather than working to create a real solution.

In 2018, the Democrats will need to win 24 seats to flip the House. On the Senate side, of the 33 seats up for election, 23 are Democratic, 2 independent and just 8 Republican. How the Congress handles the issues on its plate -- aid for Hurricane Harvey, (and potentially Irma), the debt ceiling, government funding, and tax reform -- will determine the path of the elections next year.