DACA: One More Example of Broken Democracy


The judicial and executive branches tussle over a bone that belongs to legislative branch. But in spite of near unanimous pro-Dreamer public opinion, Congress has wasted nine years doing nothing to protect them.

Friday, a Bush-appointed federal judge in Texas issued an injunction that stops the Department of Homeland Security from approving any new DACA applications. The judge’s opinion reviews the main arguments against the legality of the program from the beginning, but his ruling stopped short of removing its protections against deportation, and Dreamers will still be able to hold jobs. The order undoubtedly will be appealed, and will eventually end up at the Supreme Court.

In short, this was yet another incident in a very tangled legal history. President Obama established DACA by executive order in 2012 in order to protect undocumented immigrants who had been brought to the US as children. He tried to extend the program to their parents via another executive order in 2014, but the courts blocked that plan. President Trump tried to end DACA by executive order in 2017, but the courts stopped him too. Now a judge appears to want to end the program himself.

I’m tempted to do what I usually do with significant court rulings: explain in layman’s terms why the judge is right or wrong. But that kind of article would miss the point. The larger and more important story is that democracy shouldn’t work this way. And the root problem isn’t with the two dogs barking at each other: It’s not that Obama or Trump overstepped, or that the courts should or shouldn’t have let them. The problem is with the dog that hasn’t barked: Congress.

How this started. I doubt President Obama ever imagined that DACA would still be around nine years later. In the speech that announced the program, he prodded Congress to pass the DREAM Act, or take some other action to supersede his order:

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.

Precisely because this is temporary, Congress needs to act. There is still time for Congress to pass the DREAM Act this year, because these kids deserve to plan their lives in more than two-year increments. And we still need to pass comprehensive immigration reform that addresses our 21st century economic and security needs

At the time, passing the DREAM Act didn’t seem like a heavy lift. DACA immigrants, a.k.a. Dreamers, are the poster children of the undocumented. Their parents brought them to the US as minors, when they had little choice in the matter. They have grown up here, stayed out of trouble, and gotten an education. Most speak English like natives and are full participants in American culture. Hundreds and hundreds of them have served in the US military.

Some did not know they were undocumented until it came time to apply for a driver’s license or a Social Security card.

Freshman year is when I first found out I was undocumented. I was waiting at registration and when the clerk was going through my paperwork, she asked if I knew my Social Security number. I told her I’d get it from my mom later. When I got home, my parents had told me about my “story”.

Many have little connection to their country of origin.

I haven’t been to Mexico since I left as a 3-year-old, more than 25 years ago. I have no memory of the place, and I’m culturally American — I would feel more like an outsider there than I do here. I have no clue how I would make a living, or where I would go. I had the opportunity to take some Spanish classes in college, but I speak it with an Alabama accent and can’t read or write the language well.

As Obama said back in 2012:

Put yourself in their shoes. Imagine you’ve done everything right your entire life — studied hard, worked hard, maybe even graduated at the top of your class — only to suddenly face the threat of deportation to a country that you know nothing about, with a language that you may not even speak.

In short, deporting the Dreamers to Mexico (or wherever else they might have been born) would be an obvious injustice. In poll after poll, large majorities of Americans recognize this. And while many right-wing politicians are anti-immigrant, few step up to lead an anti-Dreamer movement. Even President Trump purported to be rooting for them. As President-Elect in 2016, he told a Time interviewer:

We’re going to work something out that’s going to make people happy and proud. They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.

Dysfunction. So if everybody is for you and nobody is against you, you should be OK, right?

Not so fast. In September of 2017, Trump and Democratic leaders in Congress briefly seemed to have a deal, but it quickly fell through. The problem: As much as Trump claimed to sympathize with the Dreamers, they made great hostages, and he never thought Democrats were paying enough to ransom them. As late as last summer, he kept naming a price and then backing away from it:

Trump has previously offered legislative proposals that would give Dreamers permanent legal protections in exchange for some of his hard-line immigration priorities, including cuts to legal immigration and border wall funding. But the offers failed in part because the president himself backed away after facing opposition from immigration hawks who accused him of going against his own campaign promises.

Some version of the DREAM Act has passed the House more than once, most recently on March 18. Once again, though the anti-democratic nature of the Senate looms:

The American Dream and Promise Act is the latest version of the Dream Act, which Senate Republicans have filibustered five different times to prevent the taking of a vote. This year, Democrats have edged out Republicans for control of the Senate, but a sixth filibuster is all but certain as it takes 60 votes to defeat a filibuster.

But the filibuster hasn’t been the only problem. Back in 2013, the stars aligned in the Senate, but not the House, largely because Speaker Boehner enforced a different anti-democratic process: the Hastert Rule, which allowed nothing to come up for a vote without the support of a “majority of the majority”. The rule worked like this: Republicans held 234 of the 435 seats in the House, so a mere 118 Republicans would constitute a “majority of the majority”. So 27% of the House could block the other 73% from accomplishing anything.

That anti-democracy feature built on top of another one: Gerrymandering was the only reason Republicans had a House majority at all. In the 2012 elections, John Boehner’s Republicans got 47.7% of the vote, and Nancy Pelosi’s Democrats 48.8%. In other words, Republicans representing on 24% of the country held veto power over the other 76%.

So nothing happened.

Power abhors a vacuum. If you read much about American politics, you will often run into complaints about the imperial presidency, or judicial activism. Presidents of either party, and liberal or conservative judges alike, are grabbing too much power, power the Constitution never intended them to have. Examples are easy to find.

But the problem isn’t executive or judicial strength, it’s legislative weakness.

When the People want something, and Congress can’t act because it has tied itself in knots, presidents will look for a way to make it happen. (That’s where DACA comes from.) If Congress can’t wield the war power, presidents will. (Congress still hasn’t repealed or replaced the Authorization for the Use of Military Force it passed after 9-11. Maybe it will soon.)

When laws are vague, or become obsolete as times change, and Congress refuses to clarify or update them, judges will find a way to read meaning into the laws they have. (This is basically the problem with the Second Amendment, which no longer means anything independent of judicial interpretations. How does that text give you the right to own an AR-15, but not a bazooka or an exocet missile? Did the Founders really anticipate that distinction?) No judge is going to tell plaintiffs and defendants “Hell, I don’t know.” And once you have to start making something up, why not make up something you think is good according to your own lights?

So we shouldn’t be arguing year after year about whether the Supreme Court is interpreting the Religious Freedom Restoration Act properly. Congress should look at the Court’s interpretation of the old law and pass a new one that better captures the People’s will. Those debates should be happening in committee hearings, not in amicus briefs to judges.

Conversely, when powerful interests in the country want something to happen and Congress won’t stop them, they’ll get their way by manipulating the bureaucracy. If unscrupulous presidents know Congress won’t enforce the limits on their power, and that they can violate any law without fear of impeachment, bad things will happen. And whose fault will that be?

American democracy had a near-death experience the end of the Trump administration. There is no lack of good thinking about how to tighten up the constraints that protect us against future usurpations. But will any of that happen? Of course not.

In a year or two, we may be back to deporting people who know no other country than this one, and who show every sign of the potential to be good citizens. Hardly anybody wants that to happen. But the body whose job it is to stop it is broken.

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  • George Washington, Jr.  On July 19, 2021 at 12:48 pm

    The issue isn’t so much that Congress is dysfunctional (although it certainly is). The problem is that Congress reflects, to some extent, the divide in American politics. Even if the Electoral College and gerrymandering didn’t exist, the country is fairly evenly divided. Do we want a slim majority making rules unilaterally over the objections of the other side? I know I’ll be grateful if the filibuster and the Hastert Rule prevent Congress from outlawing abortion or same-sex marriage. I’d prefer to live in a legislatively gridlocked country than a Republican dictatorship.

    • jh  On July 19, 2021 at 3:32 pm

      well, it reflects a lot of the deep division in the US. what does each group want? Too often, America has chosen the “Pontius Pilate” route and given into the demons. See.. the nonsense about 3/5s in the US constitution. why do we have them counted in terms of representation when they don’t have the same rights as people? By that logic, why not add in cats and dogs as dependents and then, all of us pet owners can get a crack at the child tax credit. Those demons in the past knew that black people were people. They just wanted their cake more.

      What we need is violence. That’s what causes social change. No offense to the peaceniks.. but without more radical black civil rights leaders, MLK Jr would have been nothing. The Kennedys only supported MLK Jr. because the alternatives were worse.

      One key thing… violence is always poo-pooed. I’m always surprised at that. The US didn’t win by asking politely. The slaves weren’t free by “pretty please”.

      One of the key things I’d target are certain individuals. Say, the people who draw up voting districts. The families and friends included. If Bill O’Reilly could go on tv and say “tiller the baby killer”, why can’t we do the same? If anti-abortion groups can take pictures of Planned parenthood employees and then, post them for that employee to see on their commute to work, why can’t we do the same?

      No. It’s not a race to the bottom. If a person comes at me and I don’t do everything in my power to fight for my life, I’m committing suicide. That goes for words as well. We all know that they start with words. But it always ends up with the people who are targeted by those words being killed.

      I truly believe that if somebody says things about me that restrict my right to humanity, it’s no different from a gun being pointed at me. Because if they want to have the market place of ideas to discuss whether or not I’m human, I’ve lost. Some things are not up for debate. I get that people who have never been dehumanized don’t get this and that’s why they beg that I should be better. But it’s frightening to those of us who get the “dehumanizing” thing and suddenly, we’re attacked for getting angry and not tolerating the nazis in our midst. Those who seek peace need to prove it by protecting me so thoroughly that I never feel that fear.

      I truly believe that if Tucker was killed, if a bunch of catholic priests were slaughtered, if a bunch of rurals were bombed… the world would be a better place. Again, we didn’t say “please don’t kill the Jews”. we didn’t say “We’re so sorry but can you stop attacking us” to the Japanese. I think the voting stations in conservative areas should be bombed. I think that cops and their families should be made very aware that they are surrounded and it only takes one opportunity to get them. I wish for more solidarity on the left … because sometimes, you have to do the violent thing because demons aren’t to be reasoned with.

      Yes, conservatives are demons. Let them prove to me that they are human beings. I see no evidence of their humanity. A rat shows more altruism and humanity than a demonic conservative. Here’s hoping for a reign of terror to wipe the conservatives out. My just one of my dreams. that the wishy washy “lefties” shut up because I’m sick and tired of being scared that my humanity is up for discussion but conservative’s inhumanity is accepted as the norm. I’d shoot a rabid dog. Why can’t I shoot a rabid conservative? The wishy washy lefties like my blood being spilled. They should volunteer and be killed in my place rather than expecting me, a cornered person, to show some superhuman grace. I’m not an angel. I’m not a good god. I will be as good as I can when faced with demons. That means.. good at killing them. Thou shalt not let evil walk freely.

      Remember, before getting upset at my calls for violence. Ask yourself… if somebody started talking about you and your loved ones as if they were rats to be removed.. what would you do? At some point, there’s no place to hide. What will you do when they come for you? Isn’t it better if the nazis are killed before they build Auschwitz 2.0?

      And again, are conservatives even human? Exactly what part of humanity do they represent? The monstrous past? Would you welcome smallpox back? How about witch trials? What about Japanese internment camps for YOU? See what I mean? None of us should tolerate this conservative nonsense. They aren’t human. They need to be put away so that we aren’t complicit in the formation of more victims of conservative demonic evil. It’s time to stop pretending that they are human. Those who refuse to recognize humanity in black people, in DACA kids, in Muslims, in women .. maybe the real problem is them. You know.. like if you have 10 bad exs.. the problem is YOU, not the exs. The problem in this world is the conservatives. Those primitive demons should have been drop kicked into a gas chamber so the world could be a better place.

      How many people has Murdoch’s conservative nonsense destroyed? How many have the “covid is the flu” crowd murdered? if we were going to do a body count, conservatives have a better body count than Stalin, pol Pot, Mao, and Hitler combined. I think the only one they can’t beat is the demonic Christian god who habitually commits genocide.

      Yeah, I also don’t want the filibuster removed. Demons will do far worse in the future if they don’t have that leash. Oh,…. and the SCOTUS Judges should be slaughtered as well as republican legislators. Demons don’t have a right to life. They can pray to their god.

  • joeirvin  On July 19, 2021 at 2:15 pm

    Dysfunction is exactly what the plutocrats sought and what they purchased.


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