Mero Moment: Rule creates law, not vice versa

Composite image, St. George News

OPINION — When Donald Trump issued an executive order putting “Dreamer” kids on a short game clock, he reignited a legal and constitutional debate about separation of powers, presidential powers and the rule of law.

This debate originally stirred passions in 2012 when Barack Obama first issued his own executive order enabling a specific subset of undocumented immigrant children to stay in the United States without fear of deportation. Those kids are among the many known as Dreamers – children brought to the United States by their parents through no choice of their own.

Obama’s executive order is called the Deferred Action for Childhood Arrivals program, or DACA. At that time it created a hullaballoo among anti-immigration conservatives, mostly centered on the order’s illegitimacy under the law. Trump’s new order giving these kids six months until the old order is repealed has reopened this contention. So, what is DACA? Is it constitutional, or is it an abuse of power? Is it sound immigration policy, or is it amnesty?

For me, the DACA debate has brought back a flood of memories from the fight over immigration here in Utah several years ago. But the arguments in support of DACA today remain the same as those arguments given to support comprehensive immigration reform in 2011. Utah got it right, and much to the chagrin of conservatives today, so did Obama.

No immigration debate is complete without a dialogue-stopping assertion about the rule of law. What don’t we understand about the word “illegal”? We are a nation of laws, not men. If we are not governed by the rule of law, only dictators will govern, and so on. Each of these platitudes has true meaning. Unfortunately, accurate application of those meanings is absent across the board when it comes to immigration.

It is important to understand the rule of law. That term – rule of law – does not alone mean we set laws and live by them. The term rule of law also projects who we are, how we think, our culture, real human experiences and so on. In other words, we will get laws wrong if we get the rule wrong.

The term is not tautological. The rule is not the same thing as the law. The rule and the law are two independent ideas. Immigration policy at every level has suffered for decades because policymakers, except here in Utah, got the rule wrong and the idea of an accurate rule bleeds into every immigration debate, from building the wall to DACA.

I like how the American Bar Association describes the rule of law:

A frequently heard saying is that the rule of law means the government of law, not men. But what is meant by ‘a government of law, not men’? Aren’t laws made by men and women in their roles as legislators? Don’t men and women enforce the law as police officers or interpret the law as judges? And don’t all of us choose to follow, or not to follow, the law as we go about our daily lives? How does the rule of law exist independently from the people who make it, interpret it, and live it?

The short answer is that it doesn’t.

President Obama got both the rule and the law right in ordering DACA, and Congress would do well to follow that example. Many opponents of DACA claim that Obama’s order was unconstitutional on the grounds that he did not have the rightful power to issue the order. They say that was Congress’s prerogative. The real answer is yes and no.

Obama had authority under something called “prosecutorial discretion.” Prosecutorial discretion is simply a constitutional acknowledgement that not every broken law is capable of being enforced. Obama used this legal idea to issue DACA – to say that the federal government was not going to chase after these Dreamer kids, all things considered.

Obama got the rule right. Those kids are not culpable in their immigration status. Their parents brought them here, and America is the only country they know. Because he got the rule right, he got the law right as well.

Is DACA really the province of Congress? Yes. But when one branch of government fails to uphold its end of the law, we cannot legitimately complain when another branch moves in to do the right thing, particularly under exigent circumstances.

Think Abraham Lincoln and the Civil War. We can argue over separation of powers. But it is hard to argue about doing the right thing. After all of the hoopla, regardless of where you stand on the processes up to this point, Congress now has the opportunity to do the right thing as well and protect the Dreamer kids.

I’m Paul Mero. Thanks for listening.

Paul Mero is an opinion columnist for St. George News. The opinions stated in this article are his own and may not be representative of St. George News.

Email: paul.mero@nextgenfreedomfund.org

Twitter: @STGnews

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15 Comments

  • statusquo September 15, 2017 at 8:32 am

    Illegal will always be illegal. Not all laws are fair or compassionate.

  • ladybugavenger September 15, 2017 at 10:37 am

    Not all laws are moral

  • mctrialsguy September 15, 2017 at 11:11 am

    Laws are laws, plain and simple, you break the law and there are consequences. There can be no compromise. If you let some get by and others not…due to favoritism, that is not fair or equal. I like the picture of Donald Trump with the flag, a true American President for sure.

  • NickDanger September 15, 2017 at 12:31 pm

    I agree with the writer here. But I’m not sure it’s important to delineate subtle semantic distinctions in the political arena to make this point.

    There are certain laws that are almost never enforced – jaywalking is a good example. I jaywalk every day. EVERY…day. I don’t even think about the fact that it’s illegal, I just do it. As do many, many others. I’ve never been ticketed for it, and I would think nothing of doing it right in front of a police officer. I’m sure I have, numerous times.

    I lived in NYC in the 80’s. Not sure how it is now but back then there were a lot of laws not being enforced – it was not at all uncommon to see someone walking down the street smoking a joint or sucking on a bottle of whiskey. The police just looked the other way. They had bigger fish to fry.

    Right now, all across the nation, in states with legalized marijuana, federal law is being violated. But it is not being enforced.

    Immigration law has never been enforced. In Santa Barbara back in the early 90’s, I’d see buses leaving town filled with illegal immigrants. I was advised by a police officer that the buses were headed to the Mexican border at Baja. They’d cross the border, unload their human cargo, and turn around. The illegal immigrants would then simply walk right back across the border and return to whatever they were doing before they were picked up for some minor infraction and “deported.”

    So yeah, you know, “rule of law” does not equal “law.” But I don’t see that distinction being relevant. Each individual police officer, department, county/city, and state decides which laws it will enforce and which it won’t. For people who live…wherever they live, they know what they can and can’t do. For people who don’t, maybe they’ll find out the hard way.

    But for these DACA kids, yeah, you know, a little decency is what’s needed now, a little non-enforcement, a path to citizenship for these upright contributors who are culturally American.

    I mean, who are we? We are not evil, we’re the good guys. Now let’s prove it.

    • tcrider September 15, 2017 at 1:44 pm

      I got a ticket in nyc for jaywalking and never paid it, I also got one in Boston and never paid that one. Its all a calculated risk of what will happen if you get caught again. Just be prepared to face the consequences.

      • ladybugavenger September 15, 2017 at 2:41 pm

        You’re such a rebel tcrider 😂

    • statusquo September 15, 2017 at 1:53 pm

      Maybe the DACA parents should have counted the cost before bringing kids into the world with potential detrimental consequences? Their decisions are proving to be risky and unwise given the current governmental resolution to actually enforce the law. The kids have only their parents to blame for their current situation, not the government.

      • mctrialsguy September 15, 2017 at 2:42 pm

        Good comment, and true.

      • NickDanger September 15, 2017 at 3:11 pm

        You know who holds children responsible for the sins of their fathers, statusquo? God.

        But here on Planet Earth, where we are none of us gods, we are all personally accountable for our own choices and no one else’s.

        The DACA kids never made a choice – unless you count their choice to obey the law, get educated, work, and try to build a life for themselves in the only country they’ve ever known. The qualifications for DACA require no felonies, no serious misdemeanors, a high school diploma or honorable discharge from the military, and 10-plus years of continuous residence in the USA. These are solid, motivated kids. I’m sure there are a few bad apples, but statistically there must be fewer than among average American youngsters.

        The point of deporting them would be to send a message that discourages future violations of the type that brought them here. We can accomplish that in other ways, and in fact, securing the borders is a huge part of President Trump’s platform.

        Instead of “sending a message,” we have an opportunity here to implement a one-time solution to an isolated situation that will demonstrate our quality as a society. I adamantly oppose taking the low road, and I am certainly not going to transfer the blame from the parents to the children. What were these kids supposed to do, wander aimlessly into Mexico as soon as they were old enough to understand that they were undocumented? No.

        So let’s make it right, and get it done soon, IMO. Fast-track to citizenship for DACA kids is the compassionate answer that benefits everyone. To me it’s a no-brainer.

        • ladybugavenger September 15, 2017 at 4:40 pm

          I agree with you, I really do. Wouldn’t the border have to be secure first before an easy path to citizenship?

          I don’t believe Trump will start deporting law abiding illegal/undocumented (law abiding other than their status) productive people any time before a pathway to citizenship is made for them.

          But there is a way to become a citizen. I’ve worked with someone in St George who had been here for a long time without papers. She’s a great woman! Love her! She doesn’t think she speaks English well and she says she doesn’t understand and I had to keep telling her she speaks well, better than people born here. Because the people here speak in slang so she doesn’t understand the slang. She speaks proper English.

          My point is, she did it. She got citizenship. She works, productive, tax paying, law abiding citizen. She did it! And so can others.

          • statusquo September 15, 2017 at 10:01 pm

            You are correct. The only thing that defines nations are its borders. And secure nations are defined by secure borders.

  • mctrialsguy September 15, 2017 at 3:28 pm

    Paul Mero, you should write about the anti-LDS feelings in St. George . Looks like a lot of people are not sympathetic towards LDS beliefs. Strange that sentiment is going away from those beliefs and the heritage and history of the area and Utah’s founders. Why is that so? I am catholic but I have no hard feelings towards any other religion or residents of the area. I see the LDS teaching values and living by standards that we should all follow. Are the millennials and younger generation going away in another direction? Food-for-thought.

  • dodgers September 16, 2017 at 6:14 am

    Paul-DACA was done through executive memorandum not executive order.

  • utahdiablo September 16, 2017 at 7:04 am

    DACA is CACA….come in legally or don’t come in….too much of my and you taxpayer dollars go to these illegals instead of our families, can you kids get out of state tution? Nope, but illegal aliens can….what the H is with that?

  • tenx September 16, 2017 at 10:13 am

    I couldn’t disagree more. Somehow I knew Paul’s position on the subject before I even read his article. The infamous amnesty of 1986 along with some 6-7 amnesties since, has left us with some 21 million (my estimate) illegals in the USA. The 1986 amnesty was to be the “Amnesty to End All Amnesties”. Fact- more amnesties encourage more illegals to come! Again by my estimate, (after working elbow to elbow with workers in 29 countries for 32 years) there are about 3.5 billion people in the world who will/would come to the USA if they had a way in, legal for not legal. I have several friends among the 1100 who stand in line EACH DAY on Roxas Blvd. at the US Embassy in Manila, Philippines. They will wait for 12 years to come legally while the dreamers and border jumpers DON’T wait in line even one day and then expect to go to the front of the line. Mind you, these 1100 in Manila have had a dream, ever since their grandfathers fought side by side with the US forces during World War 2, to come to the USA from the Philippines which was a US protectorate for many years. If we owe anyone a pass to come in it is those who have a history of close ties to the USA. Viva LEGAL immigration.

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