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Immigrant Children and the Rule of Law
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Earlier this week, Attorney General Jeff Sessions announced that in six months, the Department of Justice will begin the long process for deportation proceedings against 800,000 young people who came to America as babies and young children in the care of their parents and others because those entries into this country were and remain unlawful.

When President Barack Obama signed numerous executive orders attempting to set forth the conditions under which illegally immigrated adults whose children were born here could lawfully remain here, he was challenged in federal court and he lost. Sessions believes that the government would lose again if it declined to deport those who came here illegally as babies and young children.

Here is the back story.

Shortly after President Obama formalized two programs, Deferred Action for Childhood Arrivals (commonly known as DACA) and Deferred Action for Parents of Americans (commonly, DAPA), in a series of executive orders, the U.S. Court of Appeals for the 5th Circuit ruled that DAPA — the orders protecting undocumented immigrants who are the parents of children born here — was unconstitutional.

Before signing his executive orders, Obama tried to persuade Congress to amend federal immigration laws so as to permit those who came here illegally and bore children here and those who came here illegally as infants to remain here with work permits, high school diplomas, Social Security numbers, jobs and other indicia of stability and permanence. After Congress declined to vote on the Obama proposals, he authored his now-famous DACA and DAPA executive orders. He basically decided to do on his own what Congress had declined to do legislatively.

But Obama’s executive orders were not novel; they merely formalized what every president since Ronald Reagan — including President Donald Trump — has effectively done. Each has declined to deport undocumented immigrants who bore children here or who were brought here as young children. President Obama alone showed the courage to put this in writing, thereby giving immigrants notice of what they need to do to avoid deportation and the government notice of whose deportations should not occur.

Numerous states challenged Obama’s DAPA orders in federal court. The states argued that because they are required to provide a social safety net — hospital emergency rooms, public schools, financial assistance for the poor, etc. — for everyone within their borders, whether there lawfully or unlawfully, DAPA was increasing their financial burden beyond their ability or will to pay. Stated differently, they argued that the president alone was effectively compelling these states to spend state tax dollars against the will of elected state officials. The states also argued that DAPA was such a substantial deviation from the immigration statutes that Congress had written that it amounted to the president’s rewriting the law and thereby usurping the constitutional powers of Congress.


A federal district judge agreed with the states, and the U.S. Court of Appeals for the 5th Circuit affirmed that ruling. That court held that by increasing the financial burden on states against the will of the elected officials of the states, the president had violated the Guarantee Clause of the Constitution — which guarantees a representative form of government in the states, not one in which a federal official can tell state officials how to spend state tax dollars.

It also ruled that by enforcing his executive orders instead of the laws as Congress wrote them — those laws mandate deportation for all who came here illegally, no matter their age or family status — the president was failing to take care that all federal laws be enforced. That behavior, the court ruled, violated the Take Care Clause of the Constitution, which compels the president to enforce federal laws as they were written, not as he might wish them to be.

The Supreme Court declined to intervene by a 4-4 vote, thereby permitting the 5th Circuit decision to stand undisturbed.

When Sessions announced this week that DACA will not be followed after March 5, 2018, he said he is confident that DACA is unconstitutional for the same reasons that the courts found DAPA to be unconstitutional. Yet there are moral, constitutional, legal and economic arguments on this that will be an obstacle to the cancellation of this long-standing program.

Morally, most of the beneficiaries of DACA are fully Americanized young adults who know no other life but what they have here and have no roots in the countries of their births. Many are serving the U.S. in the military. Constitutionally, DACA has effectively been in place since 1986, and 800,000 people younger than 40 have planned their lives in reliance upon it. Legally, once a benefit has been given by the government and relied upon, the courts are reluctant to rescind it, even though the 5th Circuit showed no such reluctance.

Economically, the summary removal of more than three-quarters of a million people from the workforce would have serious negative consequences for their employers and dependents and for delicate economic forces, and there would be negative economic consequences to the government, as well, as each claimed hardship case — each person whose deportation is ordered — is entitled to a hearing at the government’s expense.

Now many Republican and Democratic lawmakers in Congress want to make a close version of Obama’s executive orders with respect to immigrant infants (DACA) the law of the land — something they declined to do when Obama was president. Were this to happen, the tables would be turned on Trump. He would be confronted with the constitutional duty of enforcing a federal law that he has condemned.

Would he live up to his oath of office?

Copyright 2017 Andrew P. Napolitano. Distributed by

• Category: Ideology • Tags: Immigration 
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  1. Bubba says:

    The law is an ass as you so eloquently write. We need to deport all the illegals starting with the criminals and build the damn wall.

  2. Law, law, law? “Political power grows out of the barrel of a gun”, Chairman Mao. Trump now controls the guns, let him use them. Throw the Dreamers out. By the way, if they are so wonderful, Mexico should be happy to have them. Alternatively, we can ship them to Germany.
    We elected Trump to end illegal immigration. Let him do it.
    By the way, here is my “legal analysis” Judge: suppose P steals a car from A. P now gives the car to C to use. C uses it. So? C is using stolen property which should be returned to A. I see US citizenship as “property” which has been stolen.
    I don’t care what way of life the 800,000 know. Throw them out.
    The 1986 amnesty brought us how many tens of millions of illegal aliens? How many more will letting the 800,000 stay? If it is 800,000?

    • Replies: @vetran
  3. vetran says:

    We need to deport all the illegals starting with the criminals and build the damn wall.

    Too little too late.
    This should have been done centuries ago when the first European came in the wake of the Mayflower…

  4. vetran says:
    @George Weinbaum

    Alternatively, we can ship them to Germany.

    Why not Auschwitz?
    You should do your Aliyah while you’re at it.

  5. MarkinLA says:

    blah, blah, blah. Heard that one already. Time for you to get new material.

    • Agree: Bubba
    • Replies: @vetran
  6. Judge – you said there were legal and constitutional arguments. Is this the best you can do?

    Constitutionally, DACA has effectively been in place since 1986, and 800,000 people younger than 40 have planned their lives in reliance upon it. Legally, once a benefit has been given by the government and relied upon, the courts are reluctant to rescind it, even though the 5th Circuit showed no such reluctance.

    Are you referring to the Reliance Amendment to the US Constitution? Or is this something else we just stuff into “due process?” Fine. We can give them notice and an opportunity to be heard to point to the legislative declaration that makes them a legal resident or citizen. Is there a statute requiring the courts to be reluctant to rescind a benefit extended by the Executive after the Executive withdraws it? As you note, the Fifth Circuit couldn’t find any of this in the DAPA cases.

    Moral arguments–policy–are for the Legislature to worry about. If judges disagree, they can resign from the bench and run for Congress. This is a terrible column.

  7. @vetran

    Metacomet did try. King Phillip’s War is still the bloodiest war on the North American continent by percentage of the population that suffered casualties. The settlers won. Sad to say, it appears the new colonists are also winning by the connivance of the host population’s elite.

  8. woodNfish says:

    (Trump) would be confronted with the constitutional duty of enforcing a federal law that he has condemned.

    Not true, Judge, because there is no current law for DACA. It is an illegal and unconstitutional executive order, not a law legally passed by the Congress. If Congress passes such a law, Trump will abide by it. You know it, we know it, and your entire article is based on a falacy of your own creation just to give you something to write about. How is that fake news working out for you Napolitano?

  9. KenH says:

    Here is the back story.

    The backstory is that the judge’s heart bleeds for illegal aliens and is a tireless champion for their cause. Just because past presidents were derelict in their duty to enforce immigration laws in general and specifically those concerning children of illegal aliens doesn’t mean we can’t start now. He’s introducing shades of gray where there really are none.

    Trump keeps signaling his willingness to sign legislation to grant legal status to the “dreamers”, so he’s a lying sack of shit for breaking one of his signature campaign promises. At any rate it’s time the dreamers take their dreams to Mexico.

    But if Trump cucks on this then at least Fred Reed will finally be happy.

    • Replies: @MarkinLA
  10. First, I believe Trump has kicked this over to Congress as his ruse for not having to deport Dreamers. He’s always been hesitant about them. That Obama did an XO was perfect for Trump who made good use of that illegal act and now never has any responsibility for them because if Congress fails to act they then become Congress’s fault, not Trump’s.

    I think that deportation will become simpler, more efficient and faster as the DoJ and the Immigration Courts get used to it. Too, more immigration judges will help and that’s in the works – lots more IJs are planned. What’s needed is years of pressure so the illegal lobby is broken or, at least, bent.

  11. gustafus says:

    Shut up already about the rule of law…. there is no rule of law. There is perception, branding and feel good legislating in a country where 16% of the population is functionally illiterate with an IQ of 85.

    It’s OVER… and if they come for Trump with ropes and a guillotine – You’ll get no argument from me.

    Dreamers vs White Supremacists …. that’s the brand that won.

    50’s Americana vs Invading Hordes …. didn’t get off the ground.

    There is no one left to save us. Western Civilization has been traded for higher Amazon stock prices and a “growing” economy. We SAVED THE CHILDREN of fish bombing Javanese and AIDS infected Africans…. to the detriment of every bird and butterfly.

    So now Our Donald will dump billions from helicopters on victims that could have been chosen by central casting and HARP….. Texans, Floridians and Puerto Ricans.

    SAINT DONALD — Big Daddy to the Dreamers…

    [“Pshaw, Twernt nuthin” -as Newt pats him on the head]

    Birds alight his fingertips and woodland creatures nuzzle his toes….. What a guy.

    Where is Kathy Griffin with that ax?

  12. gustafus says:

    Gosh, ya think so? … Never Trumpers have been trying to peel away support using the wrong tricks.

    It was finally his fragile ego and warm fuzzy self image that did him in ….

    Now he’s Big Daddy to a million more Latinos who hate him. Until yesterday, he had the support of 68 million true believers.

    Today… come get him. I’ve outlived my usefulness….. Puerto Ricans are gonna love those helicopters full of cash…..

    St Donald and the ART OF THE DEAL.

  13. vetran says:

    Rule of law? Seriously? Is Andrew Napolitano living in Disney fantasy land or has he lost his meds?…
    Freedoms are being choked out by a prevailing view among cops and other government bureaucrats that they have the right to search, seize, strip, scan, shoot, spy on, probe, pat down, taser and arrest any individual at any time and for the slightest provocation.
    Not to mention official disregard of international law when last weekend it has reached a new low in searching the premises of Russian consulates, in clear violation of the Vienna Convention.
    Rule of law? Give me a break!
    Fascist rule …

  14. MarkinLA says:

    What really gets me about the “dreamers” is why will nobody bring up the subject of their parents. The “they had no choice” stuff is getting sickening. OK, they had no choice but the parents did. So we should first deport the parents. If you give amnesty to the kids, the next cry will be for amnesty for the parents to keep the families intact.

    Make that a condition of legalizing the dreamers: green card but no citizenship ever with proof that the parents have been deported. Then see who supports that. They should also never get affirmative action. People have to realize what the consequences of keeping these underachievers in this country are. The media makes sure the real truth never comes out.

  15. Obviously we have a couple big problems here. Which one would be easier to solve, the so called dreamers, or the root cause, female suffrage?

  16. Nobody believes me when I say that Fox is a liberal bastion, but this is further evidence.

    Yeah, the rule of law would suggest these “innocents” get a day in court, but at some point politics trumps law. In a sane world, these people would be out in a New York minute, but the donor class wants them so they, and several million accompanying relatives, are here to stay.

    As for the loss of these “workers” costing the economy, what is the opportunity cost of the American citizens they have crowded out of the workforce? Why do we never hear about that?

    Face it … the criminal elite are convinced the best Americans are those who are not actually American.

  17. vetran says:

    In general I don’t like double standards. Period.

    • Replies: @MarkinLA
  18. Sgt. Joe Friday:
    I agree, the 19th Amendment is the greatest political mistake the US has made.

    You exhibit Reductio Ad Hitlerium. I was suggesting Angela Merkel’s Germany, not Uncle Adolph’s.

  19. MarkinLA says:

    Well then you need to make sure of your definition since comparing a time with no laws to one with is hardly a case of a double standard.

  20. Anonymous • Disclaimer says:

    The must be repatriated if Trump wants to retain his base. Removing all illegals was one of his core promises. Not to mention the 800 000 jobs gained for the citizens and the fact that the “dreamer” cohort is very anti-white and very political. They are the ones carrying “we are here to stay” and “we will replace you” placards.

    • Replies: @RadicalCenter
  21. The answer is obviously to give qualified Dreamers a pathway to citizenship, such as marrying a US citizen of their choice and make them pay handsomely for it, or alternatively they may opt for a free ticket back the country of their citizenship and a small stipend to help support them for the first year only. If they have criminal records or obvious delinquency, they should be repatriated. If they are disabled and dependent on parents, they should be allowed to stay in the US.

    For each Dreamer who takes the pathway to citizenship, the country of their birth should lose one of the immigrant visas that its citizens would otherwise have received until the numbers are balanced.

    What is the point of a Congress if it can’t debate solutions and propagate federal laws that will be acceptable to most people? The real problem is that congressmen are mostly used to receiving under the table payments and favors from lobbyists supporting bills, and right now there is nothing in it for them in sorting out the DACA issue. The truly American solution would be to find a way to make regularizing Dreamers profitable.

    • Agree: The Anti-Gnostic
    • Replies: @MarkinLA
  22. anonymous • Disclaimer says:

    Forgive the rant but–that should have been done when they amended the immigration law in 1986, if not long before. But, no, the “American people” –so beloved by both parties–sat on their collective asses and did nothing! Laws were never enforced, law enforcement budgets were cut, Big Business wanted the cheap labor (Lord knows how many politicians were paid off) and the Elites wanted their Ethiopian and Thai restaurants. Meanwhile the illegals were pouring in by the numbers. Certainly legal immigration should have been cut off completely at least by the mid-nineties so as to allow the ones who were already here legally to acclimate themselves to life in America. Again, the beloved “American people” did nothing. And so we are now in a fix, one which may be irreparable. Frankly, I can’t blame these Dreamers. I’d probably feel the same way. After all, as an American citizen and voter I’m as much to blame as everyone else for the current state of affairs.

    Notice that I have not blamed the government. The government didn’t fail. WE failed. WE, the beloved “American people” who are supposed to be watching over the government, specifically politicians who make policy and the bureaucrats who administer policy. Well guess what? We didn’t.

    Now we’re paying the price.

    If we want to know who to blame, just look in the mirror.

    • Replies: @MarkinLA
  23. @Bubba

    Hell yes. Just for starters.

  24. @Anonymous

    Wholeheartedly agreed, sir. Trump should pick some other issue to make a major compromise on. Illegal aliens of any age and background must be found and deported and barred from ever coming back.

  25. MarkinLA says:
    @Jonathan Mason

    If they are disabled and dependent on parents, they should be allowed to stay in the US.

    Their parents are also illegal aliens. There parents should be deported along with them disabled or not.

    The truly American solution would be to find a way to make regularizing Dreamers profitable.

    I already answered that: Deportation. These people are and will be a net drain on our system forever.

  26. MarkinLA says:

    If we want to know who to blame, just look in the mirror.

    Wrong. What resources existed in 1996 to fight against the lies from the media and government. How much of your life would you be willing to spend in prison to make a difference? How much of your life savings?

  27. @vetran

    The only “Indians” in North America arguably capable of building effective walls were in southern Mexico at the time of English exploration/colonization in North America.

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