The law is just a smokescreen for Trump ending DACA.

When the Trump Administration Refers to “Law and Order,” It Really Means “Exclusion”

When the Trump Administration Refers to “Law and Order,” It Really Means “Exclusion”

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Sept. 6 2017 7:35 PM

The Wrong Side of the Law

When the Trump administration refers to the “rule of law,” it really means “exclusion.”

US Attorney General Jeff Sessions speaks regarding the Deferred Action for Childhood Arrivals (DACA) program on September 5, 2017, at the Justice Department in Washington, DC.
Attorney General Jeff Sessions speaks regarding the Deferred Action for Childhood Arrivals program on Monday in Washington, D.C.

Paul J. Richards/Getty Images

When President Trump pardoned former Maricopa County Sheriff Joe Arpaio—then under contempt of court for bucking a federal injunction—he defended the action as necessary for the preservation of law and order. Lawmakers and advocacy groups expressed outrage, and for good reason. Arpaio hadn’t been a force for either law or order. Throughout his career, he repeatedly and flagrantly violated the constitutional rights of the men and women in his jails, to say nothing of his racial profiling, measures that consumed resources at the expense of actual crime in his community. Celebrated for his cruelty, Arpaio embodied a homegrown authoritarianism defined by its racism. And in shielding the Arizona sheriff from the legal consequences of his actions, Trump undermined actual rule of law, subjecting it to his whims and prejudices.

Jamelle Bouie Jamelle Bouie

Jamelle Bouie is Slates chief political correspondent.

It was ironic, then, to see the president cite the rule of law in criticizing Deferred Action for Childhood Arrivals, an Obama-era executive decree that shielded unauthorized immigrants who had come as children from deportation provided they paid a fee, met certain requirements, and registered with the government. Announced in 2012, almost two years after a successful Republican filibuster of legislation that would have the same effect, the consensus among legal scholars is that the action was legal. But President Trump disagrees. “As President, my highest duty to defend the American people and the Constitution of the United States of America,” he said in an official statement. “At the same time, I do not favor punishing children, most of whom are now adults, for the actions of their parents. But we must also recognize that we are [a] nation of opportunity because we are a nation of laws.”

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His attorney general, Jeff Sessions, echoed Trump’s concerns in announcing the end of DACA. “No greater good can be done for the overall health and well-being of our republic, than preserving and strengthening the impartial rule of law,” said Sessions. “To have a lawful system of immigration that serves the national interest, we cannot admit everyone who would like to come here.”

But both odes to the rule of law are difficult to square with the rationale for the Arpaio pardon, even if the pardon was clearly permissible under the president’s broad powers. The former sheriff didn’t just break the law: He violated the constitutional rights of American citizens and disobeyed a court order to cease that conduct. A president seriously concerned with rule of law would not claim Arpaio as an ally (as Trump did) much less pardon him of his offenses.

The natural explanation for this inconsistency is that “rule of law” is a smokescreen meant to obscure the actual reason for ending DACA. That reason is Trump’s own nativism—a driving force of his campaign for president, reflected in the cultural and racial anxiety of his voters—and the anti-immigrant ideologies of key advisers like Sessions and Stephen Miller (who was mentored by Sessions in the Senate). Both men hold deeply nativist worldviews and highly restrictionist agendas for immigration, with the goal of limiting and removing as many immigrants as possible, and creating an inhospitable environment for those who remain.

The official statements from Sessions and the White House illustrate those views. The attorney general, for example, stated that DACA—which he called an “open-ended circumvention of immigration laws”—denied jobs to “hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens,” a claim with no basis in fact but in the myth that immigrants take jobs from Americans. Later, Sessions declares that the failure to enforce immigration laws puts “our nation at risk of crime, violence and even terrorism.” This may be true in the general sense, but it has no relevance to the actual policy in question, which deals with those undocumented immigrants who came to the United States through no act of their own, and who seek to live and work in peace. The statement simply serves to associate immigrants with crime and disorder.

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The White House statement is even more reliant on anti-immigrant myths. Trump says that DACA contributed to a “massive surge of unaccompanied minors from Central America” that included “young people who would become members of violent gangs throughout our country, such as MS-13.” This, my colleague Mark Joseph Stern finds, is simply false, an allegation “touted by far-right xenophobes.” Later, the president—like Sessions—connects DACA to a “decades-long failure” to enforce immigration law that has led to “the illicit entry of dangerous drugs and criminal cartels” in addition to other ills. Again, there’s little to support this claim other than familiar anti-immigrant tropes.

These tropes define the White House’s message on DACA, and in turn, they show how “rule of law” isn’t the actual concern of the president or his attorney general. If it were, then similar restraint would have accompanied Trump’s travel ban from Muslim-majority countries. Instead, the administration claimed absolute authority and discretion even as the January order itself brought a wave of legal challenges. “The president’s powers here are beyond question,” said Stephen Miller in defense of that measure. Speaking on ABC news, the adviser expressed views that have clearly informed White House policy on immigration. “There is no constitutional right for a citizen in a foreign country, who has no status in America, to demand entry into our country.”

The actual goal in suspending DACA is exclusion. When the law serves that key purpose, as Trump and his advisers have argued with the travel ban and ending DACA, they hail “rule of law” and constitutional restraint. But when the Constitution and the law interfere with exclusion, when they preclude the abuse of immigrants and other vulnerable groups, then Trump ignores them, as we saw with his pardoning of Arpaio.

In his statement, Jeff Sessions warned of societies where “the rule of law is subject to political whims and personal biases,” decrying them as “societies afflicted by corruption, poverty, and human suffering.” The attorney general is right: The law cannot be arbitrary and should not rest on caprice. The irony is that this warning applies best not to supporters of unauthorized immigrants, but to himself and a president who knows no other way to govern.

One more thing

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