Why isn’t innocence enough to protect any child from the law?

istorically, bigotry has served as the basis for US policy and law often enough that no one should be surprised that we’re at it again, targeting people who had no meaningful choice when they were brought to this country as children. To mask our bigotry, we call these innocent young people “childhood arrivals.” We pretend they broke the law as minors by accompanying their parents who brought them to our country in violation of our constitutionally squalid immigration statutes. But we also pretend we are big-hearted because we will hold off on “deferred action” against these criminals in our midst. Yes, that’s DACA, Deferred Action for Childhood Arrivals, the 2012 executive program that is fundamentally a moral hoax and a legal joke, neither of which is among the reasons President Trump has given for throwing the program into deferred chaos.

In fact, President Trump has offered no rational explanation for his decision to punt the problem to Congress for six months while promising to revisit it later if Congress doesn’t act to his liking (whatever that turns out to be). That re-visitation is a reasonable likelihood, since Congress hasn’t acted since August 2001 when the Development, Relief, and Education for Alien Minors Act, known acronymically as the DREAM Act, was introduced as a bipartisan proposal from Senators Dick Durbin of Illinois and Orrin Hatch of Utah and 16 co-sponsors of both parties. The legislative history of the DREAM Act’s multiple failures to treat innocent children with something like fairness and decency is a story of dysfunctional government now in its third presidency. The standards in the DREAM Act are truly double standards, expecting these forced immigrant children to be paragons of virtue that some native-born citizen children would have a hard time meeting.

Well, never mind, that’s what America does to its masses of immigrants — it treats them harshly to see if they’re tough enough to become real Americans. There are two obvious exceptions to that rule. The rich or talented immigrant has a much softer ride. And those brought here as slaves are never forgiven.

Like all hurricanes, Hurricane Trump spins in circles with random chaos

The president’s moral vacuity regarding “childhood arrivals” was underlined by his chickening out on announcing it himself. These DACA children arrived in the US when they were an average age of six (now they’re 26 on average, but their children are citizens). So for the president to pass the announcement of this bigoted decision to serial hater Attorney General Jeff Sessions was a neat Trumpian ploy to get to see himself as dissociated from his own inhumanity. At a press conference last February, the president rambled semi-coherently, as if he were trying to persuade himself of his own decency:

We’re going to show great heart. DACA is a very, very difficult subject for me. I will tell you. To me, it's one of the most difficult subjects I have…. But you have some absolutely incredible kids — I would say mostly. They were brought here in such a way. It's a very — it's a very very tough subject. We are going to deal with DACA with heart. I have to deal with a lot of politicians, don't forget. And I have to convince them that what I'm saying is, is right. And I appreciate your understanding on that…. But the DACA situation is a very very, it's a very difficult thing for me because you know, I love these kids. I love kids. I have kids and grandkids and I find it very, very hard doing what the law says exactly to do.

Announcing that DACA would end in six months or so, the US attorney general both lied about the program and misrepresented it in a ritual Republican manner. Most egregiously, he called them “adult illegal aliens” and said they could participate in the Social Security program. Responding to the predictable outcry against his decision, President Trump tweeted, without substance: “Congress now has 6 months to legalize DACA…. If they can’t, I will revisit the issue!” The next day the president was widely reported as saying he had no second thoughts about cancelling DACA.

Even before Donald trump announced his candidacy for the presidency, anyone who was paying attention knew he was unfit for office in more ways than one would want to count. So he wasn’t taken seriously. With major media playing the Trump Campaign for comedy ratings, Trump ran roughshod over Republican candidates made to look like pallid clowns, whether more qualified than Trump or not. And still he was not taken all that seriously by a Democratic Party and candidate that stood for little more than being not-Trump. Now we are where we are, wherever that really is, and the leaders of the country in both parties, in business and the arts, in media and academia, in whatever field, mostly resemble chickens in the barnyard with the fox, scrambling to let the fox catch some other chicken first, as if the slaughter would come to a natural end in due course, after which the blood on the ground would dry and be covered over by dust and feces as usual.

There are some exceptions to our widespread barnyard panic

Fifteen states and the District of Columbia filed suit September 6 to block Trump’ DACA plan the day after it was announced. New York attorney general Eric Schneiderman, who is part of the suit against the Trump administration, told an anti-Trump rally:

We understand what’s going on in Washington. And we know that when bullies step up, you have to step to them and step to them quickly. And that’s what we’re here to do today.… By definition, DREAMers play by the rules. DREAMers work hard. DREAMers pay taxes. For most, America is the only home they’ve ever known. They deserve to stay here.

This is the essence of what makes DACA a moral hoax and a legal joke. Just to qualify for deferred action as a childhood arrival, DREAMers are required to provide evidence that they are better than average people. Roughly 800,000 of them have done just that. These are children who are being punished for being good children. They did not break the law, yet the law holds them accountable for the sins of their parents. Innocence should be enough to protect a child from the government.

And there is a Gordian Knot solution to this largely imaginary problem. It’s a mystery why President Obama didn’t do this instead of crafting another Rube Goldberg structure destined to be a problem as long as it lasted (the immigration equivalent of Obamacare). That Gordian Knot solution is simple and constitutional. These DREAMers, for reasons that defy human decency, are charged with violating immigration law, an offense against the United States. The Constitution (Article II, Section 2) gives the president the “Power to grant Reprieves and Pardons for Offenses against the United States.” President Obama could have pardoned these innocent “criminals,” but big gestures have not been his style and, as a lawyer, he presumably could list a bunch of complications flowing from such pardons. But so what? They would have been fair and just and decent. They would have served the intent of the Constitution’s preamble to establish justice, insure domestic tranquility, and promote the general welfare. Pardons would have transformed the debate from seeming to be about rounding up imaginary aliens to actually being about legally lynching innocent children.

The pardon option remains on the table. If Joe Arpaio is pardonable for committing crimes against humanity, why not pardon DREAMers for doing nothing more wrong than making a bad choice of parents? President Trump could do it tomorrow. Or the tomorrow after that. Or the tomorrow after that…. What are the odds?