DACA, COMPASSION, AND THE LAW
9/5/2017
Years ago, people from other countries sneaked across our borders. Many were adults bringing with them their young children. Through no fault of their own but due to the multitude of motivations that made their parents violate our laws and enter our nation illegally, there are now many children and young adults who know of life in no other country but this one.
Several years ago, President Obama sought to circumvent our nations immigration laws and, by way of Executive Orders, unconstitutionally eliminate enforcement of existing law duly passed by the United States Congress. While it is certain that he had significant political motivation to do so, ostensibly he created these orders out of compassion for these young people. He consistently repeats the mantra that they are here "through no fault of their own", refusing to state the obvious fact that they are here because their parents chose to violate the laws of this nation. If a family found an empty summer home and decided to live there and their children, through no fault of their own, became accustomed to living there, does it mean we should not return the home to its rightful owners? President Obama believes that the children brought to America by their parents, through no fault of their own, should be entitled not to have their lives disrupted. His is the "compassionate" response. And he was willing to accomplish it through illegal means.
Today, President Trump attempted to right the difficult situation created by Obama when he created DACA. In fact, the President was forced to deal with this issue now as opposed to some other time because there was a law suit being filed by 9 states' Attornies General that would have, without a doubt, put an end to Obama's Executive Order on the basis of its being unconstitutional for a President, by fiat, to overturn a law passed by Congress. It is, without a doubt, a violation of the separation of powers. The United States Attorney General stood before the people today to declare the end of DACA and giving the Congress 6 months to pass legislation, if they wished, that would allow the so called "Dreamers" to remain in this country legally without fear of deportation. The Attorney General made a point of saying that we are a nation of laws and, to remain a nation admired by the rest of the world, we must follow those laws. The Trump administration is attempting to thread the needle between being a nation of laws and being a compassionate nation.
Predictably, there followed an uproar not only from the 800,000 or so Dreamers and their friends and families, but also from Democrats who declared to anyone who would listen that Trump was a cruel and heartless man without a scintilla of compassion for the "dreamers who through no fault of their own", would now, once again, live in fear of being deported to countries about which they knew nothing.
So, we are faced with a group of people, Republicans, who want to make the law and following the law the main issue. On the other hand, we have Democrats pulling out the compassion card and stating that an exception to the law should be made on the basis of that compassion for out fellow man. All this leaves us with an opportunity to discuss the perceived conflict between compassion and the law.
So, let's begin by stating from the outset that compassion is a characteristic found in human beings. And while our government is of the people, by the people and for the people, those people make laws. And while compassionate hearts make good people, good laws make good government. The law is not human, therefore, incapable of compassion. While people operate on the basis of their heads and their hearts, government operates on the basis of laws. But, some will immediately attempt to correct this view by countering that we can write laws that are compassionate. NO! There is little doubt that the people who write the laws can and should consider the needs of the people when they write the laws. But once the law is written, the law itself is dispassionate. The laws must be written in accordance with existing laws and the laws must be applied fairly and equally to all. Once written it must be applied as written. The law does not alter itself because of the circumstances. And, in this nation, if enough people do not like the law, if they believe it treats people inhumanely, they can ask their representatives to change the law. And then people, the ones who operate with compassion from time to time will write new laws that they believe are better.
Here are some questions to consider:
If a man loves his family, sees his children going hungry and he robs a bank to get money to feed them, should we apply the law or compassion?
If a husband is watching his wife die a painful death and gives her a pill to end her life, should we apply the law or compassion?
If people attack and beat a group of people who are speaking hatefully about them, should we apply the law or compassion?
If the law says that a weapon shall not be brought onto the grounds of a school and someone goes to pick up their child after school, forgetting that they have weapons in their trunk, should we apply the law or compassion?
In each of these cases, the circumstances are weighed against the law. In each of these cases, some might say that the circumstances are such that the illegal, unlawful behavior should be excused. The law does not. Fortunately, we have, in most cases, separated the penalty phase for unlawful conduct from the trial phase and it is there that human beings, a judge or a jury, can show compassion. But it is not the law that is compassionate except insofar as it provides for specific reductions in penalties for specific circumstances. Even then, the law is what it says it is.
Why does this have to be so? The answer lies in the concept of the slippery slope. As soon as an exception is made to the equal application of the law, it becomes a precedent. And, as a precedent, it alters the law. And when another circumstance emerges that is just barely different from the circumstances resulting in the first exception, the first exception becomes grounds for the next exception. This goes on until the exceptions to the law begin to conflict with the original intent of the law. This is precisely how we have wound up with what politicians like to call "broken" systems. We now have a broken tax system, a broken immigration system, a broken healthcare system, a broken welfare system, and on and on. Broken by whom? Broken by the very politicians who created them. Broken by the very politicians who refused to either follow the laws as written or to change the laws. Broken by politicians like Obama who decided that their compassion should overrule the law established by the government.
We have now come to the point where some politicians are declaring that the government itself is "broken". They believe it is not compassionate to have a government that cannot understand needs of one group or another. They want different laws for different people based on the special circumstances of those individuals. So, in addition to compassion resulting in slippery slope issues that create broken laws, we also find that "compassion" results in unintended consequences. Affirmative action that was designed by compassionate people to correct the discrimination against specific minority groups, resulted in discrimination against others. To accomplish this affirmative action goal, we had to alter existing values based on merit by invoking principles of emotional, ill-defined concepts like "fairness" and "diversity". And, in turn, "fairness and diversity" have been further applied to all manner of circumstances and situations until much of the nation is now confused as to what constitutes a male and a female and who they will find in their locker rooms. Compassion resulted in slippery slopes and unintended consequences that have quite nearly broken the nation because it confused and circumvented the law.
Let us not, in this discussion of compassion and the law, ignore the huge issue of slavery. For the law of the land was that slavery was not illegal. And that law was not disapproved of by enough people in enough states to overturn the law. People of compassion rightfully wanted to end slavery but they could not end it lawfully. Those who wanted to maintain the right to keep slaves were willing to separate themselves from those who wanted to see slavery ended. President Lincoln was confronted with a choice between compassion for the nearly 4 million slaves in the U.S. in 1860 and the Tenth Amendment which granted to the States a great measure of self-determination. Even now, there is disagreement on whether the states of the confederacy were constitutionally prohibited from seceding. Newspapers of the time were filled with editorials supporting the peaceful secession of states from the union of states. Amendments were introduced seeking to prohibit secession, suggesting that secession to that point was not illegal. This was the place and Lincoln was the man who had to choose compassion as against the common understanding of states rights. Compassion vs the law.
How did that work out? An estimated 620 thousand to 820 thousand people died during the Civil War and more than a million others wounded. The southern United States was economically devastated for a generation or more. Lincoln essentially turned the Constitution on its head with respect to the relationship between the States and the federal government. The President himself was slain because of his decisions. Slavery was ended but the consequences of slavery, according to many, still reverberate through the black communities of the nation. Some still maintain that no equality exists for descendants of those slaves while others threaten another civil war unless more compassion is shown to those descendants.
Was there another way? Was there a way that a nation of laws could have settled this problem of slavery with less dire consequences for the nation and for the slaves themselves? Could Lincoln have issued his Emancipation Proclamation at the beginning of his term? Could the government have made provision to replace the cotton and plantation economy of the South with other industries and negotiate a settlement with the South? I do not know the answer to these questions. I know that 99% of Americans today believe slavery is wrong. And yet, we still have some measure of slavery in America as people are brought into the US from Asia and other places and forced to work as low or no wage laborers or sex slaves. As a nation, we have promulgated hundreds if not thousands of laws resulting from the consequences of that battle between compassion and the law. We are a changed nation because of Lincoln's decision. I think we can all agree that the enslavement of people is and was wrong and needed to be undone. But, acting out of compassion, while ending slavery, had other disastrous consequences for the nation that cannot be denied.
If acting out of compassion means, on each occasion, that we must devastate or divide our nation, I for one would rather solve the problems through the exercise of the law and if the laws are bad, to find a way to change those laws. The declaration that justice and compassion necessitate that the rule of law be ignored in favor of a compassionate response is not a moral high ground. It is the inability of those whose compassion demands action to persuade those who disagree with them. And their willingness to act outside the law while declaring it just only demonstrates their intention to impose upon others their moral views. Real compassion does not result in the death of thousands and the division of our nation but in freedom, life and unity for tens of millions.
