by Jay Johansen | Jan 16, 2017
In June 2012, President Obama declared a policy he called "Deferred Action for Childhood Arrivals", or DACA. Under this policy, people who had come to the United States illegally when they were children, who had not committed any felonies, and met a few other conditions, would not be deported.
Lets ignore for the moment the argument that Obama did not have the authority to enact such a policy. As I write this, Obama will be gone in a few days, so his unconstitutional acts are a moot point. Forget Obama. What should we do about these so-called "dreamers" in the post-Obama era? Should the new administration and Congress rescind this policy, or continue it?
On the one hand, I, and I think many other Americans, are sympathetic to the Dreamers' position. It was not the children who intended to break immigration laws, but their parents. Many of these children grew up in the U.S. and have never known any country other than the U.S. It does seem cruel to send them "back" to a country that they never knew.
On the other hand, would we apply this same reasoning to any other violation of law? Suppose that a greedy business owner steals millions of dollars from the company pension fund. He uses the money to buy a mansion and a fancy car and to send his children to elite private schools. Eventually he is caught. A court orders him to pay back the money. He makes an impassioned plea to the court that if he has to pay back the money, he will lose the mansion and the car and his children will have to drop out of private school. This isn't fair to the children, he says. The mansion is the only house they've ever known; the private school is the only school they've ever attended. It wasn't the children who committed the crimes: it was him. Yes, punish him, but don't punish his children by taking away their home and school. That wouldn't be fair.
If you were the judge, would you be swayed by that argument? I certainly wouldn't. The children only have these things because their father stole them. Yes, it might be hard on the children to lose all the benefits that they enjoyed. But they never had a right to them in the first place. If their father had not committed this crime, they never would have had any of this. It is not at all clear how "justice" means that the children of a criminal somehow "deserve" to enjoy the fruits of his crime.
Indeed, if we bought this "the children shouldn't suffer" argument, how could we enforce the law against any criminal who has children? If we send their father to jail, the children will grow up without a father. If we make the mother pay a fine, that will ruin the children's Christmas. Etc. It's very sad when innocent children suffer because of the crimes of their parents, but if we let that stop us from penalyzing wrong-doers, then people who have children would be effectively exempt from all laws. Criminals would have a child or two and then they could laugh at the law. Whose fault is it that your children suffered because of your crimes? Is that the fault of the government? Of the law-abiding citizens? Or is it your fault because you broke the law?
There is this flaw in my analogy: If the court let the corrupt business owner keep the house for the sake of his children, his victims, the employees whose money he stole, would directly suffer. If it is not clear why the thief's children deserve to continue to live in the mansion bought with stolen money, it is even less clear why the children of the people he stole from deserve to live in a tiny apartment or a homeless shelter so that the thief's children can keep the victims' money. But in the case of illegal immigrant children, there is no direct victim. If they're working and paying taxes, they're not taking away any citizen's money. Maybe they're taking jobs that could have gone to legal citizens, maybe not. Etc.
Personally, I'm in favor of something like DACA. I don't think Obama should have imposed it in this unconstitutional fashion. It should have been passed by Congress or never have happened. But going forward, I think Congress should pass something resembling DACA. But if they do, it will be an act of generosity, not of justice. America doesn't owe these people anything. I think we should be generous and give them an undeserved present, because America is a generous country. But it would be a gift, and not something they are due.
© 2017 by Jay Johansen