With D.A.C.A. Decision, Trump Flunks the Constitutional Morals Test

This post has been updated.

When I was 5 or 6 years old, I was sitting between my brother and sister on a bench seat in the back of an early-70’s sedan. Those two were being naughty, and I, as usual, was behaving myself perfectly well. My mother said to stop with the horseplay, and when my siblings failed to conform their behavior to her wishes, she pulled the car over, turned around, and slapped all three of us across our faces. (In those days corporal punishment was meted out against minors routinely.)

Around the same time of my life, I was trick-or-treating with a large group of kids on Halloween. I was dressed as Mickey Mouse, whom I loved at that age. We got to the door of an old ghoul who said as she distributed small pieces of candy, “Everyone take two. Except for the mouse. You only get one.” (To this day I ask myself, WTF?)

So before I was 8, I’d had my introduction to the principles of fundamental fairness. It’s not right to be punished or mistreated a) for something you didn’t do, or 2) because of who you are.

constitutionThese principles — moral principles — are built into the United States Constitution, and especially its Equal Protection Clause. Not all groups are guaranteed equal treatment under the law — speeders and drug dealers, for example, are often treated differently than everybody else. That’s because those groups aren’t what courts call “suspect classes,” and the difference in treatment isn’t arbitrary and evil.

Courts are most protective of characteristics — like ethnicity and gender — that are immutable, meaning that they can’t or at least shouldn’t have to be changed. Such a characteristic is not a marker of bad behavior or bad character; there is no choice involved. As a Supreme Court justice once put it, a person should not be punished for membership in a group from which “there is no way to resign.”

When applying equal-protection principles, courts are also protective of groups that have historically been politically powerless — like ethnic minorities, women (who’ve been denied the right to vote and the right to hold property, among other rights), and (legally present) non-citizens.

These constitutional principles seem easy enough to apply to people who came to the United States as babies, whose parents either arrived or remained in the US illegally. There’s no choice involved in that, and there’s no meaningful choice thereafter, either; I’ve never met a teen anxious to go back to somewhere he or she can’t remember ever being and where he or she has no roots. And non-citizens can’t vote; that makes them politically powerless, as they historically always have been.

These “Dreamers,” as they’re aptly called, are also mostly ethnic minorities — largely Hispanic. So there’s that immutable characteristic, too.

It seems, then, that punishing or mistreating Dreamers — for things they didn’t do and for being who they are — smacks not just of evil, but of the betrayal of basic constitutional principles. Nonetheless, Donald Trump, who has no more business deciding the fates of human beings than does your average field mouse, has announced the end of DACA — the program President Obama initiated to suspend the deportation of Dreamers. Trump has incorporated a six-month delay during which Dreamers can languish in limbo, because what good is any Trump policy without a little extra reality-TV drama?

Why, you might ask, doesn’t the Equal Protection Clause shield these Dreamers from the monstrous impulses of a demon like Donald Trump? There are a few reasons, but to oversimplify, it’s because the Supreme Court has decided that the explicit and plenary power Congress has (under Article I of the Constitution) over immigration and naturalization trumps the Equal Protection Clause in matters involving the treatment of non-citizens. And since Trump’s cancellation of DACA simply restores the status quo as it existed under federal law (the law as enacted by Congress) before President Obama intervened to protect Dreamers, the resulting hardships will be the result of choices made by Congress — you know, that gutless collective that’s under the thumbs of the Cowardly Ryan and that ponderous tortoise Mitch McConnell.

Notwithstanding that a constitutional remedy may not be available to Dreamers (but maybe I’ll tackle that more creatively in a future post), Trump’s decision to end DACA is a gross affront to the spirit if not the letter of our governing charter. By canceling DACA, Trump has flunked the constitutional morals test.

-bb

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