DACA kids : equity welcomes what “the law” is too rigid to remedy

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Today the Senate will likely vote to end the minority’s filibuster and fund the Federal Government. This is good news but hardly good enough. That supporters of immigration reform thought it smart to “shut down” the Federal government to force a vote on their issue doesn’t promise much progress — just the opposite.

First of all, some explanation : the top immigration priority is protecting the 800,000 or so children and young adults covered by an Executive Order (by former President Obama) entitled”deferred action for childhood arrivals” — what we call “DACA.” 87 percent of voters support granting these residents a pathway to citizenship, or to legal permanent residence, because they were brought to America young and by their parents’ doing and thus cannot be viewed as “illegals.” All equity and justice says that as they know no other country, and have no other home than America, they should be left in place to succeed as Americans.

It should be easy to enact legislation to do just that. So why isn’t it ?

There is only one reason why DACA enabling legislation isn’t the no-brainer it is : the president wants other immigration measures, and he won’;t sign DACA legislation unless he gets them. Those immigration proposals are not easy,. They are controversial. Some are bad, bad policy. A majority opposes them. Thus the impasse over DACA, made acute by DACA advocates insistence on attaching DACA legislation — but not the measures that Mr. Trump says he wants — to a basic government funding bill.

I fully understand the frustration of DACA advocates. A “DACA deal” was all but agreed to, two weeks ago, as the President met with the DACA legislation working group of legislators. Then anti-immigrant supporters intervened. Their basic pitch was, “OK, you want to legalize the DACA 800,000 ? Fine, we’ll give you that, but in exchange you’ll have to throw almost every other sort of immigrant under the bus. No more family re-unification admissions. No more special program Visas. And $ 20 billion to build that ‘wall.'”

It is outrageous for supporters of harsh anti-immigration legislation to hold DACA kids hostage like this. Once the debate on DACA legislation begins in earnest, the following principles must prevail :

( 1 ) no longer can people who are here in the country without documentation  be shamed for “breaking the law.” The law exists for people, not people for the law.

( 2 ) even if undocumented people have “broken a law,” the concept of equity provides a remedy. Equity jurisdiction was invented in our common law in the late 12th Century, by the Church, as a means of providing justice to people for whom the ordinary law had no remedy. Central to equity courts was the INJUNCTION, an order by the Court to stop a defendant from doing something. Injunctions remain central to our system of laws; indeed, they are used all the time to prevent injustices, including Mr. Trump’s “travel ban” orders and overreach by immigration law enforcers. It is expensive to go to court, however, and injunctions are purely passive : they stop but do not authorize. Why can’t the Congress enact the sort of immigrant protections that equity courts prevent officials from violating or suspending ?

( 3 ) the limitations on equitable immigration concepts such as family reunification and special purpose visas amount to nothing more than discrimination against certain origins. If immigrants change the skin color or language make-up of the nation, as they do, so what ? Superficial effects or prior habits readily give way, in America, to our transformative national impetus. I am not afraid of any immigrant of good will, indeed I am thrilled they come here to join our nation’s mission.

Back now to the equity concept.

Equity could always go beyond injunction to authorize; but equity authorizations were case-specific. Only Parliament (or Congress) could enact general legislation. Nonetheless, the principle carries: general legislation to authorize DACA kids is nothing more than 800,000 individual court injunctions — a kind of class action injunction with further orders.

For me, the immigration principle is central to who and what America is. We may be a nation of laws, but we’re also a nation of immigrants — the more and more diverse, the better, the more advantageous to our culture of innovation and multiplicity. This is where the concept of equity steps in. Equity is kin to equality, the fundamental rationale for our Declaration of Independence and for our system of universal suffrage voting. Equality assures all of us that no person can lord us; equity guarantees that no law is a closed box. It’s really quite easy to embrace the equity concept of immigration and to free it from the rigidity of “the law” without rendering it lawless.

So let’s do it.

—- Mike Freedberg / Here and Sphere

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