Enforcement, without Apology

By Kevin D. Williamson

Wednesday, January 17, 2018

Democrats and Republicans want different things when it comes to federal spending and when it comes to immigration reform. Those two disagreements are interacting in a fairly unpredictable way: Democrats, who are the minority party in Congress, are threatening to force a government shutdown (not that the government ever actually shuts down) if they do not get their way. That’s the leverage the minority party has, and the Democrats believe, based on experience, that the Republicans probably will be blamed for any shutdown.

Shutdowns are not a new development in American government. There have been 18 occasions upon which federal government funding has expired in the past 40 years, and similar things happen at the state level: Maine, Connecticut, and Pennsylvania all had gaps in 1991 alone. New Jersey and Maine had them last year. Life went on more or less as expected in the Garden State and in the . . . whatever they call Maine.

Democracy is supposed to be adversarial, and while we may lament the current practice of scorched-earth congressional politics, in which every fleeting parliamentary advantage is exploited to maximum effect (a bipartisan failing), it is natural and legitimate that the minority party relies on the tools with which its members are presented. Our constitutional order assumes negotiation, hostile though it may be, in the interest of protecting the rights and interests of political minorities, including temporary minorities.

It also relies on the rule of law.

Congress may or may not come to an arrangement on the issue of illegal immigrants who were brought to the United States as minors. The Obama administration suspended proceedings against many such illegal immigrants under the Deferred Adjudication for Childhood Arrivals program, which the Trump administration believes, with good reason, to represent an unconstitutional and imprudent expansion of executive power — Congress has had many occasions to amend the law and pass an amnesty for these illegals, and it has declined to do so. Whether that was the right course of action or not, it is the course Congress has chosen, and it is not up to the president to effectively rewrite U.S. immigration law on his own steam. The Trump administration is going to the Supreme Court to make its case.

This debate is being conducted against an emotionally provocative background of deportations of longtime U.S. residents, many of them people with families, who are being sent back to countries that may in many cases (and may not in many others) be alien to them. Some of them are married to U.S. citizens and parents to U.S. citizens. Their situation is a terrible one — but it is not a situation of the U.S. government’s creation.

Many people, including hard-line immigration hawks such as my friend Mark Krikorian, are sympathetic to the situation of these childhood arrivals. They would like to see something done to normalize their status, but — and this is key — they want that amnesty (call it what it is) to be part of a broader and deeper package of immigration reform, one that does more to reduce and discourage illegal immigration and, at least in Krikorian’s case, substantially reduces legal immigration as well. (“It’s a win if legal immigration is reduced by more than the number of people getting amnesty,” he writes.)

Some Democrats say they want a DACA bill that is “clean,” meaning one that gives them what they want without making any concessions to Republicans or addressing the broader question of immigration. Others are involved in negotiating a compromise that, if early reports are accurate, will not much please Krikorian et al.

Republicans are negotiating from a weaker position than they should be. During the campaign, Trump made a lot of ridiculous promises about deporting every illegal in the United States and then reimporting some of them — the “terrific” ones, as he put it — on a case-by-case basis. And then he told negotiators and the world that he’d sign any old thing Congress sent him, even if it went against his own priorities. He then sent the debate straight into barnyard territory and declared (via Twitter, of course) that a DACA deal was off the table. That’s a fairly standard Trump performance: He talks like George Wallace, but in his guts, he’s George Pataki. (No one expected him to be George Washington or even George Bush; given his recent behavior, I’d settle for George Foreman.)

My conservative friends who insist that Trump’s viciousness and oafishness are merely aesthetic concerns or questions of etiquette — the man of earthy authenticity offending polite society in Washington — are grievously mistaken. Trump’s indiscipline and instability are the biggest barriers to securing Republicans’ agenda in Washington today. Trump finds a way to be wrong even about the things he basically has right, and he wrong-foots the Republicans’ already stumbling congressional leadership in the process.

Our progressive friends in the media will fill the airwaves with the tears and wailing of deportees, and we will be treated to no end of sympathetic stories. But neither the Trump administration nor the country should feel too much regret about enforcing the law without apology. In the case of illegal immigration as with the question of the conflict between state and federal marijuana laws, Congress has for too long punted the moral and legal football over to the president, asking the executive branch to save its bacon by refusing to enforce laws that Congress does not have the guts to repeal or reform. Congress has for years chosen not to act, and that is as much as choice as the decision to act. Democrats are making a lot of noise about it just at the moment, but recall that when Democrats enjoyed simultaneous control of the White House and both houses of Congress, they did not act on the question of childhood arrivals. As with Republicans and the deficit, Democrats really get religion on amnesty when they are in the minority.

Congress could have acted on this 40 years ago or at any time since. But Congress has not acted. And the American people have not exactly been out in the streets demanding an amnesty for childhood arrivals. And if Congress does not act, then the federal government should continue enforcing the law without apology.