Oh sigh. Recently we heard much huffing and blowing over the Supreme Court’s decision not to illegalize the DACAns. These, you may remember, are Mexicans’ brought illegally into the country while children. Obama gave them a sort of amnesty and allowed them to work. Anti-immigration activists say these interlopers are criminals and should be deported instanter. This embodies the interesting notion that a two-year-old can commit a federal crime.
So what should we make of all of this?
Worth noting is that while the Court pretends to be an impartial judge of the law—“the law, ma’am, the law, and nothing but the law”—in viscerally fraught cases it acts more as a micro-legislature of last resort. Probably it shouldn’t. Certainly it does. In cases of vast emotional import, the justices rule with a moistened finger in the political wind. Thus Presidents try to pack the Court with people of their own party, exactly as in Congress, for the same reasons. It is a legislature.
For example, before 1900 it had occurred to no one, including the Court, that there existed a constitutional right to abortion, that pornography was protected by the First Amendment, that the same amendment forbade nativity scenes on the town square, or that separate but equal was verboten. Now all of that has changed. Same Constitution (almost). A lagging legislature, but a legislature nonetheless.
Activists opposing immigration argue that Obama had no legal grounds for enacting DACA and that Trump therefore has the right to end it. Now, there are those who do not believe that I am the country’s preeminent Constitutional lawyer. (What do they know?) However that may be, it seems to me that the Court’s arguments were contrived and unconvincing. If this be so, why did they vote as they did?
To dodge a bullet and to prevent a civil war. Call it practicality over principle
Consider. If the Court declared the DACAns illegal, all 850,000 of them would become deportable as illegal aliens. White Nationalists would scream for their immediate eviction. The law would be on their side. Trump, who has run hard on ejecting illegal aliens, would presumably sic immigration officials on the now-criminal DACAns. Unlike the usual illegals, DACAns are easily found.
How wise a time is ours for doing this? The country is explosive. Mobs of semi-anthropoid savages loot, burn, kill, topple statues, and so on. Much of the rest of the country, so far passive, wants to beat the rampaging two-year-olds until they can’t crawl.
At the same time, social discipline withers. Several states defy federal law on marijuana. Many jurisdictions—state, big cities, counties, towns, municipalities—avowedly refuse to help federal police deport illegal immigrants. Others de facto follow the same policy.
Now, what happens when the feds erupt into a popular restaurant and cart the head cook, Lalo, off in handcuffs? Or, at the local trucking company, Pepe, who is shift boss with seven years in the job and a valued employee? Or Lupita, in charge of food services at a high school in Los Angeles?
These questions do not matter to White Nationalists and their political appendages, who are a trombone of one lone note. “They aren’t white. Throw…them…out.” Some readers may think the throwing out a good idea. Others may not. From a purely practical point of view, the results would very, very likely be horrific.
All the recent protesters would erupt again, drawn by the exaltations of mob combat in a boring life. The universities would empty as one person into the fray, supported by the media and the professoriat. They would attack ICEi agents. Groups of roaring, bellowing, and shrilling young would form human barriers around workplaces.
Washington’s choice would be either (a) to accede again to the demands of the mob, abandoning any pretense to authority that it still has or (b) to assert itself by rifle butts or live fire. Shooting looters and arsonists once would have been regarded as reasonable and even advisable. The goofier of the politically correct might find this uncouth, but they do not own the store being burned. It might be one thing to shoot arsonists, but another to shoot shrieking co-eds. The only way to get defending white, middleclass students to give way would be to smack hell out of them Tear gas and such demonstrably do not work.
Hardcore conservatives and White Nationalists might say this was necessary to maintain the rule of law. They are probably right. But—here I speculate—the Court may well have thought it wiser to duck the question and punt. Squishy? Cowardly? Maybe. But safer in the short run.
And of course if the DACAns were made illegal, every night the media would show little Lupita and Juanito, third graders, weeping inconsolably because Daddy is being sent to Mexico, whose language he doesn’t know, and they will have nothing to eat and nowhere to go in Mexico, in Mexico, which won’t accept Mommy and the kids because they are not Mexican citizens. Etc., night after night after night. Most pols would squeak and gibber in support of the DACAns. So would very many decent people.
For White Nationalists and sympathizers, none of this would matter. The DACAns are brown. We know how to find them. Throw…them…out.
Lupita and Juanito are cute kids, speaking good third-grade English. The camera shows mommy crumpled on a couch, crying and crying and crying because those brutish ICE men are going to….
Trump wants to try this. Talk about a political tin ear.
Of course the justices, no fools, would see the absurdity of trying to throw 850,000 people across the Mexican border. Who would do the throwing? The military? The attempt would risk a mutiny by the many black and brown troops…and perhaps by their white barrack-mates. This would be a very smart thing not to find out. Would the troops kick in hundreds of thousands of doors to catch the new illegals? How would they find them?
Almost certainly, think I, Congress would react as if stung and do something to make them legal again. So why bother with the whole exercise?
The time to stop mass immigration is early on, when it is just beginning, not after sixty million have come and settled in. Remember that Presidential elections are decided by five or six percent of the vote, and Hispanics are eighteen percent of the population. Do you suppose that politicians have noticed? Add that blacks, another thirteen percent, wouldlikely vote with browns on matters racial. Given this, the likelihood of evicting the better part of a million people becomes imaginary.
Was the decision pusillanimous? Yes, I think. But arguably wise. Washington does not need another trial of strength with an omninational mob which would inevitably win, or else an armed response that would take Tian An Men Square look like a pajama party.
Write Fred at [email protected] Put the letters pdq anywhere in the subject line to avoid autodeletion.
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