- - Sunday, September 10, 2017


Once upon a time the Constitution meant something to everybody. Every American took pride in a Constitution that was written in plain language that anyone, even a lawyer, could understand. Ours was “a nation of laws,” not of judicial fiat or bureaucratic whim. That was the strength of the exceptional nation.

But because a law can get in the way of fiat or whim, the Constitution was redefined as “a living document,” to be regarded as whatever a judge, however addled, wants it to be or wishes it were. Even that fig leaf has been discarded now. The Constitution is regarded as something slightly offensive, perhaps with a place in a museum with the Confederate flag, but nothing to get in the way of progress.

President Barack Obama naturally grew weary of dealing with Congress over immigration reform, and in 2012, under a novel theory that a president can write legislation he likes with an executive order if Congress won’t produce a law he likes, thus was the bastard born — presidential amnesty called the Deferred Action for Childhood Arrivals, or DACA.

Mr. Obama, the learned professor of constitutional law, knew better. He complained on 25 occasions during his first term that he didn’t have the constitutional authority to make or change law by executive order. He told audiences in 2010 that he would like to do that, but he couldn’t. Perhaps he was remembering some of the noble things he told his law-school classes about the Constitution.

But in June 2012 he gambled that he could get by with writing the law that Congress — a majority Democratic Congress, by the way — had consistently refused to do. He didn’t have the Constitution, but he had the sentiment and treacle that was the essence of his celebrated eloquence. “These are young people who study in our schools, they play in our neighborhoods, they’re friends with our kids, they pledge allegiance to our flag. They are Americans in their heart, in their minds, in every single way but one, on paper.” And paper, after all, is just stuff, like the Constitution. Only the violin music was missing.

DACA was a fraud at birth and it has continued as a fraud since. A former manager of investigations in the Obama-era U.S. Citizenship and Immigration Service estimates that half of the 800,000 holders of the work permits issued under DACA lied on their applications. “Based on what I had seen and what I discussed with my colleagues,” says Matt O’Brien, “the fraud rate is 40 to 50 percent. It’s possible that it was higher.”

Though Mr. Obama knew he was abusing both the Constitution and his oath of office, he gambled that his successor, facing an avalanche of sob stories in the media, of small children torn from their mothers’ embrace to be put on a bus to Chiapas (though the average age of the Dreamers is 25), would not do anything about the mess he created. And along came Donald Trump.

Trump the campaigner promised to suspend DACA on his first day in the White House, and Trump the president didn’t because Mr. Trump, like most Americans, has no taste for sending the dreamers back to a home that never was. He put off redeeming his promise for eight months, and then, with his own executive order, put off execution of the order for six months to enable Congress time to do what it had neither the courage nor the honor to duty to do four years ago.

Congress has it within its duty and authority to reach a compromise — a compromise that is not likely to satisfy everyone, but for the smaller satisfaction of having found it, to do the right thing.

It’s not clear what that right thing is, but it’s the duty of Congress to find it.

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