On June 15, 2012, President Obama announced that he had directed Secretary of Homeland Security Janet Napolitano to create a process to grant what is known as "Deferred Action" to certain young undocumented immigrants that were brought here to the United States as children. Right away, opponents have asserted at least two charges against the President. They charge that the President is providing so-called "amnesty" to undocumented immigrants. They also charge that the President is exceeding his authority and usurping power from Congress. Both of these charges are as politically motivated as they are false.
First let's address the charge that President Obama has exceeded his authority in the Executive Branch of our government and has usurped power from the Legislative Branch. A few weeks ago, I was asked by a friend of mine to go to Bartow, a central Florida small town, to cover a couple of traffic hearings on behalf of two of his clients. I do not know much about court procedures in the county court in Bartow nor do I cover traffic hearings in criminal traffic court very often. The first thing I do on these occasions is talk to the local state attorney handling these cases as soon as I get to the court. In this county, there is program known as a pre-trial intervention. If the charge against the defendant is Driving Without a License, a person may be able to escape prosecution provided he or she meets certain criteria. First, it must be their first offense of driving without a license. Second, they must demonstrate that he or she is able to obtain a license within a certain period of time, and third they must pay the civil fine assessed. If the person meets these criteria, the state attorney agrees to drop the charges and forgo prosecution in the case. To be sure, the person allowed to take advantage of this program has broken the law and has been cited for it. But the state will end prosecution and the person's record will not reflect the charge, provided they meet the established criteria. This is what is known as Prosecutorial Discretion.
What is the difference between the process I described above in a local county court and the Deferred Action for Childhood Arrivals (DACA) process announced by President Obama? Not much really. Both programs involve someone breaking the law. Both programs involve establishing certain criteria that the law breakers must meet. In both programs if the law breakers meet the criteria, they are provided a benefit and reprieve from prosecution. In fact in the local program we are foregoing prosecution for a crime done intentionally. The law breakers knew they had no license and they chose to drive knowing it was illegal. Most young people eligible for the DACA broke the law unknowingly because their parents caused them to do it. In any case, both programs involve a law that has been violated. In both programs officials of the executive branch who enforce the law establish a program by which the law breakers are excused from prosecution so long as they meet certain criteria. So if the DACA program is in fact illegal, then it follows that thousands of programs granting prosecutorial discretion every day in thousands of criminal courts across the United States of America have been operating illegally for as long as our great nation has existed.
The second charge is that this program provides "amnesty" to undocumented immigrants. Let us examine that charge the same way a judge would examine the meaning of a statute. First the judge would examine the plain meaning. For the plain meaning of "amnesty" let's look at the dictionary. The American Heritage Dictionary for the English Language defines "amnesty" as "a general pardon granted by a government". The same dictionary in turn defines "general" as "Concerned with, applicable to, or affecting the whole or every member of a class or category". "Pardon" is defined in the legal sense as "Exemption of a convicted person from the penalties of an offense or crime by the power of the executor of the laws". Let's examine then whether the DACA constitutes "amnesty" as defined here.
In order to constitute "amnesty", the DACA would have to apply to just about every member of the class referred to as illegal or undocumented immigrants. If you narrow that class to undocumented young persons it would have to apply to nearly all members of that class. This is clearly not the case. The DACA provides for very strict criteria that have to be met in order to be considered. First, you must be under 31 years of age and over 15 years of age. You must have been physically present in the USA as of June 15, 2007 and for the subsequent five years. You cannot have been convicted or plead guilty or no contest to any felonies or a "significant" misdemeanor at any time. You must prove you entered the USA before the age of 16 and that you have been physically present in the USA since June 15, 2007. You also must show that you are either in a course of study or have earned a diploma or GED. Clearly, the DACA does not apply in general to every member of the young undocumented immigrant class. It applies only to the ones that meet the strict criteria.
In order to qualify as "amnesty" the DACA would also have to provide for a pardon as described above.This would mean that persons who qualify would be exempted from the penalties of the law for being in America in an undocumented status. The DACA does not in fact provide for a pardon. What the program provides is what is known as Deferred Action. Deferred Action is simply what the name suggests. That "action" in your case will be deferred for a period of time. In this case, two years. At the end of the two years, one may be able to apply for an extension of the deferred action. On the other hand, the government reserves the right to prosecute your case. In fact, the government has the right to terminate the grant of deferred action at any time. Even if the two-year DACA has been granted. This is far from a pardon and therefore far from amnesty.
Now aside from these issues there is the question President Obama answered with the phrase "because it is the right thing to do". In fact this is the right thing to do for the young people that qualify and for America. There are many problems in America today. To saddle young people who are here through no fault of their own with the inability to work or pursue higher education lives them in a state of limbo living in the shadows. This is a burden for America and unproductive for our society. Many of these young people are, as President Obama said, American in every way but one. Opponents may say that they should go back to their own country. But for most of the young people in this predicament, this is their country and their culture in every way except one. So let's keep doing the right thing for them and for America.
