Early in his September 5 press conference announcing the termination of DACA, Attorney General Jeff Sessions laid the groundwork this way:
No greater good can be done for the overall health and well-being of our Republic than preserving and strengthening the impartial rule of law. … Societies where the rule of law is subject to political whims and personal biases tend to become societies afflicted by corruption, poverty, and human suffering.
With these general propositions, I couldn’t agree more. I have served as general counsel to two federal law enforcement agencies, and I know well the firm commitment nearly all federal officers hold for those values. I know, too, that high levels of noncompliance with duly enacted law, as we have experienced for decades in the immigration arena, stand as a contradiction and a challenge to the rule of law, and to the political balance of our electoral system — a more serious challenge than many of my fellow Democrats are willing to acknowledge.
A party that once tried hard to combine humane realism toward the long-resident unauthorized population (through some form of legalization) with serious enforcement toward recent violators now rarely sounds the latter theme. (Peter Beinart keenly analyzes this change in a recent issue of the Atlantic.) Middle-of-the-road voters noticed, and Donald Trump rode that issue to a stunning upset.
But the relevant question is decidedly not how can we uproot and deport more and more people, as Sessions seems to think, but rather how, going forward, can we intelligently restore a culture of compliance. This requires thoughtful, measured steps, and a long time horizon.
In any field of regulation, a legal regime that secures observance mainly through direct coercive action by armed officers is in trouble. Healthy legal regimes rely primarily on ingrained norms of law compliance and a range of social and cultural cues that reinforce the message, so that direct enforcement is needed only on the margins.
Respect for law is not strengthened by crackdowns that strike most people as unfair
In the immigration field, we are obviously miles away from such health, and today’s polarization is rapidly making things worse. In response to various Trump crackdowns, cities have passed declarations that they are “sanctuary cities.” In turn, the federal government and some states are trying to outlaw or penalize such moves, which only stimulates local jurisdictions to invent new ways to shun cooperation with federal immigration enforcement. Both those movements — indiscriminate crackdowns and local noncooperation — are misguided.
There is no one clear path toward restoring regulatory health. The massive reduction in illegal migration flows over the past decade, due in large part to enduring demographic and economic changes in Mexico, provides a promising foundation, if policy-makers are smart about how to build on it. But in the current polarized climate, probably the single most counterproductive step the federal government could take is to focus onerous enforcement action on people whose core violations occurred when they were minors. This is vendetta, not sensible law enforcement.
If we are going to make any headway on these issues, the enforcement focus should be on recent immigration law violators — for whom there is much greater consensus about the justice of enforcement, and for whom a swift return to the country of origin sends a far more effective deterrent message than the deportation of Americanized children. (Polls suggest that most of the country recognizes this core wisdom and opposes such actions against the DREAMers.) Only by patiently widening the circle of support for measured and balanced enforcement action can we gradually find our way to a sustainable equilibrium.
If restoring the rule of law is paramount, why pardon Sheriff Joe Arpaio?
Sessions’s sanctimony about the rule of law also demands a second level of criticism, because it came a mere 11 days after the president’s pardon of Sheriff Joe Arpaio. Arpaio’s office was found in a civil suit to have systematically violated the constitutional rights of persons in Maricopa County, including through racial profiling and targeting people based on perceived immigration status (rather than evidence they had violated Arizona law). The court enjoined further violations, but the sheriff did not comply.
The president said Arpaio was being punished for “just doing his job.” This comment insults the vast majority of our nation’s law enforcement personnel, who defend our communities against crime while working to honor all persons’ rights — and who initiate discipline against colleagues who fall short of that standard.
But it gets still worse, because the pardon perniciously undercut one of the greatest and most important guarantees of the rule of law: that executive officials who misuse their governmental powers are subject to checks and balances administered by an independent judiciary. It was bad enough that Arpaio’s office violated constitutional rights. It is a far more stunning affront to the rule of law that, as the criminal court’s careful findings of fact detail, he deliberately continued a pattern of violations in the teeth of a judicial injunction with specific instructions focused on his office. Courts must have the power to punish those who defy their rulings, including through a conviction of criminal contempt of court.
The president and the attorney general seem unaware of the kinds of demons that this pardon could potentially unleash. It invites ill-motivated possessors of government power to believe they can, via pardon, get away with defying a court order simply because they have declared themselves political allies of the nation’s chief executive.
On the one hand, the Trump administration’s concept of the rule of law is so rigid and unbending that it must be applied full force to children who grew up among us because of a primary violation for which only their parents are responsible. Yet it apparently does not apply to a sheriff who took a solemn oath, on several occasions, to uphold the Constitution. The seismic shock from these actions can only accelerate the erosion of that bedrock societal foundation the attorney general pretended to honor.
A chance for a change of course?
But maybe — just maybe — this storyline could shift. Surprisingly, in the days after the DACA termination announcement, the president and congressional Democrats have reportedly reached an agreement to legislate some form of DACA in return for strengthening “border security.” Details will be crucial. We need from the Democrats sustained interest in resolute enforcement, and from this mercurial president a far more tailored enforcement focus than his AG or his base favors.
The odds are long — and even longer to get support for such an endeavor from enough Republicans in Congress. It seems unlikely that this president could preside over the necessary rebalancing. But Americans who are truly respectful of the rule of law — rather than fake-respectful — should push him and Congress in that direction.
David A. Martin is the Warner-Booker Distinguished Professor Emeritus at the University of Virginia School of Law. He served as general counsel to the Immigration and Naturalization Service from 1995 to 1998 and as principal deputy general counsel (and for a period as acting general counsel) to the Department of Homeland Security from 2009 through 2010.
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