Judge's 'heartless' claim is flawed

FIRST PRINCIPLES

We’ve known for a long time that some members of the judiciary rule from emotion rather than the law, but in most instances, they at least try to appear as though they are following the law.

Not so, apparently, with Judge Nicholas Garaufis, the Clinton-appointed federal district judge on the U.S. District Court for the Eastern District of New York whose docket now includes the class action challenging President Donald Trump’s decision to revoke President Barack Obama’s illegal executive “guidance” on Deferred Action for Childhood Arrivals, known as DACA. As reported this week by the New York Post, Judge Garaufis berated Justice Department attorneys who were there to defend the Trump administration’s decision not to renew DACA’s illegal grant of “lawful presence” to nearly three quarters of a million illegal aliens who came (or were brought) to this country illegally when they were teenagers or younger. “This is a democracy,” the judge is reported to have said from the bench. “[T]hese people have thrived in America, and you can’t just come into court and espouse a position that is so heartless,” he added in what the Post reports was a “tirade” against the Justice Department lawyer standing before him.

Perhaps the judge has forgotten his role in our tripartite system of government. It is not to make the law, or to insure that the laws have “heart.” That is Congress’ job. And absent some constitutional defect, neither is it the judge’s job to refuse to enforce the laws as written. The Constitution is quite clear about this: The “Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.” And Judge Garaufis’ duty is also quite clear: “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

Of course, President Obama’s decision to impose the DACA program by executive fiat might have led the judge to mistakenly believe that DACA was the law of the land. But last I checked, the president’s pen is not vested with the legislative power. The Constitution is quite clear on that point as well: “All legislative Powers herein granted shall be vested in a Congress of the United States,” not in the president, or his secretary of Homeland Security, or in unelected federal judges. So the DACA program was illegal from the get go, just as its sister program, the Deferred Action for Parents of Americans, aka DAPA, program, was also illegal and has been held to be illegal by the courts, up to an including the Supreme Court (albeit affirming the lower court’s decision by an equally divided vote). If the law that DACA sought to suspend is constitutional — and no one has ever credibly argued that it is not — then whether the judge thinks it good policy or “heartless” is really irrelevant. That policy judgement is Congress’ to make, and Congress’ alone.

But let’s indulge for a moment that the judge should be guided by his own sense that the law, or more precisely, President Trump’s announcement that he will start enforcing the law, is “heartless.” If it were really so evident that the law was “heartless,” is it likely that Congress would not have modified the law already? Bills to grant amnesty to the so-called Dreamers have been introduced in every session of Congress for the last decade and a half, but none have been adopted. Each time, the American people expressed their strong opposition to the proposed amnesty, and the arguments against it were anything but “heartless.” The last major amnesty, done in 1986, created a much bigger magnet for illegal immigration, complete with all the “heartless” conduct of human traffickers preying on those seeking illegal entry into the United States. Large volumes of illegal immigration, induced by such amnesty, also depress the wages of American citizens, particularly those at the lower end of the socio-economic ladder. It would be “heartless” to those citizens to ignore the protections that the law as written was supposed to provide.

There is also the “toddler” myth feeding the judge’s “heartless” claim that needs to be addressed. These were poor, helpless toddlers, the argument goes, who were brought to this country illegally by their parents, and who therefore should be allowed to stay because they have no moral culpability for their illegal entry into the United States. Try making such an argument to the Disneyland guard who catches a father sneaking over the fence with his child into the Magic Kingdom. The child doesn’t get to stay just because the moral culpability was his father’s alone. There are rules — a law.

But apart from that, we now have pretty good evidence that a large percentage of the DACA recipients lied about their “eligibility” on their DACA applications. In an interview with LifeZette, Matt O’Brien, former manager for the investigative unit of the U.S. Customs and Immigration Service, claimed that “40 to 50 percent,” perhaps “higher,” of DACA recipients committed fraud with their applications, which were largely rubber stamped as approved by the Obama administration. And of the nearly 700,000 illegal aliens whom the prior administration approved into the DACA program, only 2,000 were under the age of 16. Nearly 200,000 were between 16 and 20; more than a quarter million were between 21 and 25; another 163,000 were between 26 and 30; and nearly 75,000 were between 31 and 36. Particularly for that last category, unless they were here for the 1986 amnesty or arrived shortly thereafter, they were not toddlers when they came to this country illegally.

Statistics on Unaccompanied Alien Children, or UAC, arrivals sheds some light on the collateral impact of the DACA and DAPA programs. Under 10,000 per year before Obama took office, apprehensions of UACs skyrocketed during Obama’s tenure, more than doubling from about 16,000 in 2011 to about 40,000 in 2013, the year after the DACA program was announced, and hitting nearly 70,000 in 2014, the year DAPA was put in place. Worse, as a recent government study has documented, nearly 30 percent of those UAC illegal aliens have ties to criminal gangs, including the notoriously violent MS-13 gang which more often than not preys on the very immigrant communities that Judge Garaufis seemed to be expressing sympathy toward with his “heartless” comment. Continuing a program that induced illegal immigration by tens of thousands of such violent gang members, so that they could wreak havoc in our communities, is where real heartlessness lies.

In short, cancelling the illegal DACA program (which actually hasn’t even happened yet) is not only what the law requires, but it would curtail some of the “heartless” consequences of illegal immigration for citizens and immigrants alike, those who are legally present in the United States and even those who are not. But again, the policy judgment is Congress’ to make. Judge Garaufis should stick to the law; his oath of office demands no less.