Time to Recognize Gendered Persecution (by LB)

US law grants asylum to people who have fled persecution for their race, religion, political opinion, national origin, or membership of a certain social group. When I read this list my immediate reaction was; why isn’t gender on it? I know for a fact that thousands of people face persecution because of their gender across the globe. Do they not get asylum for that persecution? When women are sexually assaulted, molested, and beaten because of their gender are they not able to receive help? When a transgender woman gets beaten nearly to death because of her gender identity and narrowly escapes will she not receive asylum? For decades people have had to try to gain asylum by convincing courts that their gender is some kind of social group, but that is usually ineffective. In order to help all of people who face serious gender based persecution gender must be added to the original five categories both in UN policies and in US law.

Back when asylum laws were created politicians left out gender because they thought including it would open the “floodgates” to too many asylum seekers. They did not include gender because they thought too many people facing gender based persecution would seek asylum. It still would’ve been ignorant, but at least slightly less immoral and cruel, if they simply did not realize that gender based persecution occured and needed to be addressed.  Instead they fully recognized that there is a huge number of people facing gender based persecution, but they didn’t want to be burdened with this so they decided it would just be easier to not include them. This is an incredibly immoral and sexist argument. x

Fauziya Kassindja is clear example of a victim of gender based persecution. She is from Togo, and was lucky enough to have a father who did not believe in female genital mutilation. However when her father passed her extended family started arranging for her mutilation so that she could be married off. She was able to escape Togo and requested asylum in the US in 1994. The judge in her case ruled that the persecution “was not linked to one of the five ‘enumerated grounds’” and therefore did not grant her asylum. In other words, Kassindja could not receive asylum because her persecution was based on her gender, which the law does not recognizes as viable. If Kassindja had been persecuted because of her race, she would’ve probably been granted asylum. Instead, because she has a vagina and was persecuted because of it, she was denied help in the US.

Gender persuasion is no joke. Women seeking help from gender based persecution is not just them being dramatic or making excuses. Gender based perception takes many forms but they are often very serious, violent, atrocious crimes. The international and national community have acknowledged that gender persecution is real and needs to be addressed, but they have yet to change the law. In order to gendered persecution victims to be treated fairly and equality gender must be added to the five categories for asylum in the UN policies and US Law.

Let’s Push Congress to Fulfill Its Duty (by XL)

The Trump administration has been besieged by vitriolic attacks and apparent public opposition even before its inauguration. When President Trump announced the plan to gradually phase out the Deferred Action for Childhood Arrivals program (DACA) last week, an executive order enacted by the Obama Administration, the confluence of negative energies against Trump precipitated a nation-wide campaign fighting for the rights of those undocumented immigrants once protected by DACA, which offered a political and legal sanctuary for more than eighty thousand alien children in the United States. Many such rallying activities go to great lengths to explain how much those innocent children have benefited from the benevolent action of President Obama and emphasize the dire consequence of DACA’s remove for these hard-working illegal aliens who have, in many ways, contributed to America’s economy and, more importantly, shared the same vision as every other citizen in the United States – the American dream and the pursuit of happiness. As much as I empathise with the group of illegal immigrants, I would argue that the prevailing public opinions are misguided and that President Trump’s effort to remove DACA should be supported for it not only corrects an inexcusable mistake made by the previous administration that is inimical to the integrity of our political system in the long run, but also realigns the currently derailed immigration system in the United States.

 

 

Many argue that DACA has opened doors to unlimited possibilities for those who came here through no fault of their own and allowed them, who are also human beings just like everyone else, to enjoy what should be their rightful entitlements – the rights to education, the rights to live freely and the rights to pursue a better life through hard work, application, and fortitude. I have no objection to the facts presented in their arguments and I admit that it is through thick and thin that many of these undocumented children have established themselves in this country against tremendous odds. In fact, many of their stories inspire respect and, at times, admiration. However, these arguments are tangential and do not hold water upon a close examination. The primary reason why DACA needs to be removed is that it constitutes a presidential overreach into the power of Congress. In short, DACA is illegal. And when something is illegal, we correct it. Its removal has nothing to do with whether this specific executive order is benefitting a group of community and carrying out sacred humanitarian duties, but rather, it is about ensuring the legality of our intuitions, the grounds on which our country and society function.

According to the American Constitution, only Congress has plenary power over immigration; the president has authority insofar as he is delegated by Congress. When President Obama circumvented Congress to unilaterally enact DACA which provides pseudo-legal status to illegal aliens brought to the U.S. as minors, it is without doubt that he acted beyond his constitutional authority. However benign his intentions are, his action is not legally justifiable. The Constitution does not constitute the President as “Platonic Guardians” nor does it vest in him the authority to strike down or enact new rules because they do not meet our standards of desirable social policy, “wisdom,” or “common sense.” On a more fundamental level, each of the three branches – the Executive, Legislative, and Judicial – has an indispensable role to play in order for our democratic system to function. At the same time, there are checks and balances placed on individual branches’ power. If we allow this overreach to continue, it only sets an inimical precedent and invites more such overreaches in the future.

Moreover, that Congress fails to craft and pass a satisfactory immigration policy is no excuse for this overreach and should definitely not be used to justify this illegality. When individual branches are not forced to exercise constitutionally allocated powers and fulfil their respective responsibilities, those powers, like muscles not used, tend to atrophy. DACA regrettably presents yet another example of unwarranted presidential action which in the long run tends to contribute to the weakening of our political processes.

In addition, DACA should be repealed for it bears disproportional social and economic costs that are very much unrecognised and need to be re-deliberated. From an equity standpoint of view, for example, DACA is unfair to those who came to the United States through legal means such as applying for the H1B visa. Each year, there are thousands of people waiting to win the lottery and hoping to work in the United States, many of whom are skilled and more importantly, are in pursuit of the American dream just like the illegal aliens, but these illegal aliens could automatically obtain amnesty without putting in much effort in the naturalisation procedure themselves. On the economic front, it is shown that blue-collar workers in the United States have experienced increased competition due to the influx of illegal immigrates who tend to populate the low-skilled job markets. Socially, not only is there a diminished sense of community as in the example of Arizona where the continual inflow of illegal immigrants has remodelled local demographics, surging medical subsidies given by the government and increased crime rates are also linked to this uncontrolled border crossings, as evidenced by a report issued by The Government Accountability Office in Arizona in 2005. In view of these invisible costs, there is a need to stop DACA and re-evaluate our approach because it is ludicrous to do something in the name of fairness that only creates more unfairness, be them socioeconomic or financial.

If we all agree that America needs an immigration reform to solve many of our current conundrums, we should, all the more, support the termination of DACA, because DACA, by virtue of its constitutional infirmity, is nothing but a makeshift measure – a palliative but not a cure. If we allow ourselves to stay in this conform zone and be stuck with a pseudo-legal status, there will never be a substantive improvement to the current suboptimal status quo. The repeal of DACA is realigning the country’s focus to immigration and it is the Congress that people need to put pressure on for Congress is the only legal entity for erecting large-scale immigration reforms.

While the popular sentiment goes against DACA’s repeal and, by extension, President Trump, we must always remember, as John F. Kennedy has reminded us, that “political representatives are not elected to be seismographs”. Representatives must exercise their judgment that best determine the nation’s interest, although it may mean that they must on occasion lead, inform, correct and sometimes even ignore constituent opinion, if they are to exercise fully that judgment for which they are elected.

In conclusion, repealing DACA is not only about restoring the system of constitutional checks and balances that preserve and protect our democratic proceedings and the tapestry of our legal institutions, it is also the right path forward for a better immigration system and a cure vis-à-vis a palliative for the alien minor conundrum. As the saying goes, sometimes we must endure a little pain in order to achieve satisfaction. It is high time that we let go of DACA and push Congress to fulfill its duties!

The Forgotten Girls- Asylum Law’s Refusal to Recognize Gender (by MS)

Women around the globe are persecuted because of their gender. Women around the globe universally experience gender-based discrimination. Although asylum is supposed to provide refuge for those who cannot be protected in their own home country, many of these people who do not qualify for asylum because gender is not one of the qualified groups.

Asylum law is the United States has a very specific formula. There are certain criteria that applicants have to meet to be accepted into America. The applicant must establish that 1) they have a well founded-fear of persecution in their country, and 2) that this persecution is based on their race, religion, nationality, political opinion, and social group.  Since this is such an established formula and there is such a high number of applicants there are very few exceptions made for special cases.

Since women experience so much violence abroad, there needs to be a way for them to claim refugee status based on their gender because they have well-founded fear that they will be persecuted, and can establish that it will continue if they return to where they are from. We need to address this in our laws in order to protect women worldwide and create a more just and gender-neutral asylum system.

The Differing Approaches of Canada and the US (by AA)

Five thousand citizens from Nicaragua may be forced to abandon their place in the United States after settling here for twenty years due to the Trump administration’s extreme immigration policy. While these individuals were staying under a Temporary Protected Status, the “temporary” part did not actually apply in practice. Obama and Bush both continuously renewed their status for years in order to give relief to developing countries who could not support an influx of people at once while recovering from disasters.

America’s northern neighbor differs dramatically in terms of policy and general attitude towards immigrants. After Donald Trump’s muslim ban, Justin Trudeau tweeted “to those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada.” A report by Reuters has found that since this election, over 15,000 people have crossed into Canada as refugees, even those who were legal. On one hand, Trudeau was naive and gave false hope to many migrants. Contrastingly, it was noble of Trudeau to take a stand against Trump’s hateful anti-immigrant sentiments, and moreover, it was not his responsibility to do so in the first place.

According to the Safe Third Country Agreement, those wishing to seek asylum must apply for it in the first country that they arrive in. This means that Canada would be forced to turn away any asylum seekers who enter from the United States. Instead, Canada has been sympathetic towards those who have fled the United States in fear of being sent home to a home that is no longer their own through loopholes in the policy. According to Immigration and Refugee Board, 408 of the 592 claims “from border crossers… were accepted” (Reuters).

From the American perspective, why is it that people who have been comfortably living here for the past twenty years are just now being pushed out after establishing a life and network in America? There is no reason that the United States is suddenly unable to support the lifestyles of tens of thousands of legal individuals in our country. Furthermore, there is absolutely no reason that citizens should feel pressured to run to Canada in fear of the administration. The United States of America is perfectly capable of providing for the many legal individuals here.

Currently, Canada’s Immigration and Refugee Board “has a backlog of 40,700 cases”.  In addition, the Montreal Olympic Stadium was turned into a temporary shelter for the thousands of asylum seekers present in Canada. Doctor Paul Caulford in Toronto explained that “every person who’s crossed from pregnant women in the back of trucks to those shepherding children to safety, have said to us that the United States is no longer a safe country for [immigrants] to be in”. In 2015 the United States may have welcomed the most immigrants, but now this administration is forcing Lady Liberty to close her doors and kick out family. It is absolutely ridiculous that the attitude towards immigrants in America has gotten so inflamed that the government is turning its back on fundamental American philosophies. As a leading nation, it is essential that the United States acknowledges the absurdity of pushing out a group of individuals who did nothing wrong and are facing hardships from their previous location. Once, America was a nation that welcomed the tired, poor, huddled masses yearning to breathe free. Today, that same nation is unrecognizable.

California As A Sanctuary State (by MB)

California is on the brink of passing a statewide sanctuary bill and it’s brilliant. Despite already having numerous sanctuary cities, de Leon SB54, is an attempt to unify policy on police enforcement statewide, instructing them to avoid contacting federal immigration enforcement when citing citizens for minor infractions and traffic stops. After the denouncement of the DACA program and the beginning of its phasing out, CA has taken action to defend its residents.

The Golden State has several good reasons to do this. Besides the moral incentive to protect immigrants from deportation, there’s another enticement to help keep immigrants here instead of forcing them out of the country. The agricultural industry. According to a federal survey, 71% agricultural workers are foreign born and 48% are undocumented. Furthermore, these numbers are raw and do not account for the fact that undocumented immigrants are being surveyed by authorities and may avoid admitting their legal status in fear of deportation. It is estimated that the 48% of undocumented could actually be as high as 70%.

Critics claim that these immigrants are “stealing jobs” away from hard working Americans yet according to another to this national statistic there is still a shortage and “hard working Americans” still aren’t filling it. The answer is not less migrant workers.  These laborers should be celebrated and fought on behalf of rather than criticized. This new sanctuary law is a step in the right direction to help protect the cornerstone community on which the agricultural industry is built on and keep fresh produce a reality. California is the number one supplier to the US in over 66 different crop categories and this industry is reliant on the workers to help make this happen. The conclusion is simple- if the crops aren’t picked, the country doesn’t get to enjoy them.

Yet there are cries to get more of these people deported who 一without their help一 our agricultural economy would collapse. Critics make the argument that only 2.1% of California’s GDP comes from the agricultural industry but this number is misleading. According to analysis done in 2012, when the food and beverage processing sector is added up it makes up 9.2% of the state’s economy一the third biggest manufacturing sector. So although the agricultural industry only directly contributes 2.1% its economic effect is actually much bigger than it may appear.

There is also an ongoing later shortage in the industry and for the fifth year in a row at a range between 15-26%. This amounts over $4.4 million of crops unharvested and left to rot.

There are also protesters making the case that this new bill is going too far and “sheltering criminals” yet in reality the bill is moderate in its approach and has not taken full access away from federal authorities in dealing with immigrant cases but simply reduced it. Federal authorities are still able to engage with immigrant criminals but no longer able to have a permanent office in jails to do so or are they allowed to transfer them to federal custody if they are only facing minor offenses.

As the federal government looks to tighten borders and crack down on immigration, California is directly in the line of fire unless it take matters into its own hands. De Leon SB84 is a step in the right direction.

The​ ​Unimportance​ ​of​ ​Assimilation (by SW)

“They pray five times a day; are we gonna have a mosque calling to prayer in Bitterroot [Valley]?”

The crowd responded with a resounding “No!”

This was the scene in February 2016 in Ravalli County, Montana as residents protested a decision by the city of Missoula to accept and settle 10 Syrian refugee families in the area. While one might brush off such blatant Islamophobia as a symptom of the deep conservatism of rural Montana, similar sentiments are often expressed by mainstream conservatives with shrouded language. Many voices from the Right have expressed a fear that refugees–especially Muslim refugees–are unable or unwilling to “assimilate” into American culture. And while this sort of rhetoric has been common among conservatives for quite a few years now, it will soon become the basis for real policy: in September 2017, the White House announced that a refugee’s “ability to assimilate” would be considered when evaluating applications for asylum in the United States. While such a policy may not come as a surprise to anyone who has listening to his campaign rhetoric, it marks a radical and worrying divergence from refugee policy of the past.

Let’s entertain this notion of assimilation for a moment–first we should define it. Of course, any reasonable person would accept that it’s important for refugees to have some help adapting to life in the US; indeed, there are many great nonprofits which help refugees find housing, employment, and community once they arrive. But this is not what Trump means by assimilation: he is speaking of cultural and, in many cases, religious assimilation. The people of Ravelli county didn’t express fears about the ability of refugees to find a sense of community; they were afraid that refugees would build a mosque and “come after [their] women.” Such fears are fundamentally rooted in bigotry and a misunderstanding of Muslim faith and culture, and as such they should have no hand in shaping America’s immigration policy.

There is also a much larger point to be made in this debate: America’s refugee program shouldn’t exist for the benefit of America; it should exist for the benefit of refugees. When the United Nations wrote the Convention Relating to the Status of Refugees, they did not do so in order to ensure that developed nations would only receive displaced people who could contribute positively to their society. Rather, the creation of refugee programs are rooted in a recognition that we have a duty to help others; not just other Americans, but other humans. Thus, the question of whether or not a refugee will become proud taxpaying American with perfect English and a strong Protestant work ethic is totally irrelevant. In 1939, when the St. Louis approached the shores of America carrying Jews fleeing the Third Reich, should political pundits have argued for granting them entry by citing studies that they would pay more in taxes than they would receive in social safety-net benefits over a fifteen year period? Of course not; while such arguments may be appropriate when debating larger immigration policy, they completely miss the point of the asylum system. Yet today we see the exact same arguments being made by well-meaning proponents of increasing the refugee-acceptance rate. The only difference is that we have the benefit of hindsight when consider our duty to victims of the Holocaust, while our national attitude towards Middle Eastern refugees is tainted by political tribalism and rampant xenophobia.

The idea that we should consider a refugee’s ability to assimilate or contribute to our society is not only absurd; it is also dangerous. It indicates either that many Americans either have a fundamental misunderstanding of what the asylum system is meant to do, or that many Americans oppose even having a separate immigration pathway for refugees fleeing conflict and oppression. Either case is dangerous, since both lead to the same result: a significant restriction or abolition of the asylum system as we know it. As soon as we allow fears about mosques or foreign languages to overrule our shared sense of duty to those fleeing unspeakable horrors, we begin to lose our identity as a nation built by immigrants and refugees. Such policies cannot be allowed to stand if America is to remain a beacon of hope for the tired, poor, huddled masses with nowhere else to go.

Persecution on the Account of Gender (by AV)

In order to receive asylum in the United States, one must be unable to return to their home country due to persecution based on race, religion, nationality, political beliefs or opinions, and lastly membership in a particular social group. The person must also have a well-founded fear of being persecuted based these reasons and is unable to go back. It might be easy to think that gender should be in this list too. But it is not, and in this day in age that is a mistake. Many may argue that gender should not be on this list, because it is not a social group. I disagree with that idea strongly, because I believe gender should absolutely be a category and should be a valid reason for seeking asylum in the United States. We always hear about how women are treated in countries such as Saudi Arabia, among other Arab countries, where their rights are very limited. Many have husbands that abuse them, or as way too much of them. As a result they grow fearful of the situation they are, and want to run away. But they can’t so they are stuck in the situation they are. That is wrong, so I believe the United States Refugee Act of 1980 should be revised to include gender as a category. Even though gender is not a social group, there is still gender persecution in the world.

With most of the world going through some sort of civil rights movements, many countries have equal treatment of everyone, and no one feels threatened due to their race or gender. But there are still countries in the world where women are held lower than men, and are treated as such. Alongside that, many gender-discriminatory laws in these countries make it hard for women to flee these countries. Therefore, I think it should be acceptable to have gender as a category. With more fluctuations of women from gender-discriminatory countries could bring a large amount of skill to the country and could be beneficial to the United States. But for this to happen, congress has to look at the Refugee Act of 1980. This law established the original five categories, but a sixth one should be added, which would be gender. Even though few countries have gender discriminatory laws, there will still be people seeking asylum on this basis alongside the other accounts. In other words, the quota for accepted refugees should be raised. The current quota is 50,000. But in order to accommodate one more category it should be raised to 60,000 people so that each category would be able to let in 60,000 people into the United States.

With so many issues around gender-discriminatory laws in other countries, it should be a big enough issue to create one more category around gender. Even though gender is not a social group, people still get persecuted based on gender. This can create a well-founded fear and a reason for people wanting to leave the country. In order to help these people, the Refugee Act of 1980 should be revised and include a gender category alongside the other five categories, with a raised quota of 60,000 refugees allowed inside the United States.

We Need To Recognize Gender As A Basis For Asylum (by SK)

In the United States in order to receive asylum, a person would need to have been persecuted in the country in which they had been residing. The few factors that the United States accepts as claims for why they were persecuted include: political opinion, membership of a social group, race, nationality, and religion. However, the United States does not accept gender as a reason for granting asylum. There are many theories as to why gender remains a disqualifier for seeking asylum; some say there is a lack of resources to accommodate that many people, and others say that perhaps the rules were written with a misogynistic tilt. Whatever the intention behind excluding gender from the list, the fact remains that gender must be added to the list. I will argue that fear of persecution for gender is well founded in many nations and that people are specifically targeted for their gender and as a result it is necessary to include gender into the list.

Many countries around the world have adopted laws specifically targeted to disenfranchise or harm women. However, the United States in their justification for why they refuse to see this as persecution, claim that because such a large number of people are persecuted it is not persecution but simply how the government operates. In addition, the United States often tries to stay out of what they perceive to be cultural practices. Consider this; if you replaced women with any other social group: blacks, Jews, gay people, albino people, no matter how large the practice, the United States would count that as persecution. There comes a point where social and cultural practices become human rights violations and allowing them to continue is simply allowing tragedy to occur. In countries like Saudi Arabia and Iran, women who refuse to wear the hijab are persecuted by the government and often thrown in jail. Furthermore, in these countries it is illegal for women to hold certain occupations. Their testimony in court is not even counted as credible as that of a man so if they face sexual harassment, a man could simply rebut them and the courts would take his side. In more extreme cases around the world, genital mutilation is still practiced on women. This serves no purpose other than to punish women for being women. The United States must stop this cowardly practice of not accepting this as persecution. Women seeking asylum here should not be forced back because their incredible stories of hardship do not fit the criteria that the immigration courts of the United States have set up. Instead, the criteria must change to allow women to seek asylum because they were persecuted on account of their gender.

Many people have raised objection to the idea of granting asylum based on claims of persecution on account of gender. Some say the burden on our resources will be too great, because too many people will take the opportunity to apply for asylum here. Others say that it would be easier to claim that they based persecution based on gender so many people who do not deserve asylum will achieve it. It may be true that as it would be a new addition to the list of criteria, at first judging cases may seem different. However just like for the rest of the list of criteria the immigration courts will adapt, and probably not allow too many people to receive asylum. Including gender is about fairness and recognizing that around the world women face a lack of opportunity and persecution solely on the basis of gender, and if people are granted asylum for race or political opinion, they should also be granted asylum for gender. This should have happened a long time ago, but there is time to fix it still.

The Need to Welcome Refugees (by MB)

Refugees, once granted sanctuary, often find themselves resettled into counties that prompt cultural shifts that are great in both scale and significance. Often refugees fleeing the tragedies of their homeland are in search of safety and opportunity by whatever means are accessible to them. This often means locating in cities with access to affordable housing and opportunities to work. It is also important, for a more natural transition, to find a city with a political climate and community that welcomes the differences and nuances of your family and culture.

These are conditions that are rarely met in their entirety for refugees.  In 2016, over 200 refugees already residing in the United States fleeing the tragedies that struck terror and harm onto citizens of Syria, found the diverse and opportunistic characteristics of Fresno, California to provide an enticing vision for an easier transition into a new life. The two greatest incentives Fresno offers refugees, is affordable housing and strong community support for diverse cultures. Word of Fresno’s cheap housing – roughly $450 a month for a two bedroom – as well as a community ready to offer furniture, food, clothing, and more, spread quickly throughout the state. This encompasses a 15,000 strong Muslim community including Reza Nekumanesh, the director of the Islamic Cultural Center of Fresno, who help provide for and secure the wellbeing of these new residents. Community organizers like Reza are keystones in developing strong community relations and an easier transition to a new life for Syrians. However, behind each of these features, respectively, is a city struggling with poverty and unemployment, and a congressional representative who championed the restriction of Syrian refugees entering the United States. This makes Fresno, and cities alike, a unique living settlement for sanctuary seekers.

An article written in June of 2017 by Miriam Jordan, titled When Syria Came to Fresno: Refugees Test Limits of Outstretched Hand, accounts a report to the police from a local Fresnan. In this report a sheep was reportedly being slaughtered in a backyard. “Muslim refugees were unaware that slaughtering sheep is not allowed in the city,” the police wrote afterward in their report. It also stated that those involved “were advised to clean up the blood and mess” and warned that in the future “they could be cited.” It turned out that the animal, actually a goat, was killed by a Syrian refugee who later skinned, roasted and shared it with his Syrian neighbors in the apartment complex where they all live. This is a custom new to the residents of Fresno as it would be for most living in this country. However, to put the incident in perspective, the greater culture shock is faced not the Fresnan reporting the complaint, but by the refugees having to readjust to a new way of living and providing for themselves.

To better ease the adjustments made by already displaced refugees in their relocation, cities and counties all across the nation must adopt the better traits of Fresno. Any large scale, life altering change takes time and support. These are the conditions that shape the very nature of a refugee. Alongside the inclusion of available food and shelter, communities must create an environment conducive with the change, even in the case that it counters the position of your elected officials.

The Rule of Law as a Matter of Political Leadership (by CC)

President Trump just announced his willingness to put an end to the Deferred Action for Childhood Arrivals (DACA) program on the grounds of the lack of legality of Barack Obama’s executive order.  It seems crystal-clear that even though the Judiciary is to still giving credit to the Executive order —  through the Office of Legal Counsel (OLC) — it is possible to challenge Obama’s decision for its encroachment upon democratic procedures and the rule of law for the sake of a moral conception of Justice. Substantive fairness should not be employed as an excuse for derogating the rule of law and infringing upon the separation of powers. While Sessions’ real reasons for abrogating the Deferred Action for Childhood Arrivals program can be questioned, the official legal arguments presented to the public seem to be solid. For the first time President Trump is really abiding by the Constitution. Therefore what is to blame for this outcome if it is not a lasting lack of political leadership finding in constitutional back doors a way to enact failed policies that did not get the approval of Congress?  Notwithstanding the fact that Obama’s Executive Orders were in fact the exercise of his administration “discretion to enforce the immigration laws” (according to the OLC wording), they do not infer any political legitimacy, neither were they made to last.

 

A lack of political leadership should not allow any government to jeopardize the constitutional allocation of powers between Congress and the Executive branch. After being elected, President Obama pushed the Development, Relief, and Education for Alien Minors (DREAM) Act in Congress, mirroring much of what later became known as  DACA. Faced with a legislative loss, the Obama administration enforced an executive order shaped as an infringement upon Congress legislative power and restricting the execution of the Immigration and Nationality Act (INA) for the group of people previously determined by the DREAM act. This extensive use of the notion of prosecutorial discretion in such a political context boils down to an unregulated ex post veto power. The issue becomes even more significant when one takes into account that the Federal government has the plenary power over immigration issues and that the INA provides that the Executive must enforce country-wide immigration laws enacted by Congress.

 

The separation of powers is at the heart of the U.S. constitution. The will of the Framers was not to trigger a quest for legal loopholes by the executive branch to circumvent the legislative branch but to ensure the respect of procedural rules and checks-and-balances. Article II section 3 of the 1789 constitution provides that “[The president] shall take Care that the Laws be faithfully executed”. Moreover, case law established that the Take care cause requests the president to enforce law — this prerogative being not a power but a duty related to the presidential constitutional role. An executive order such a DACA preventing the implementation of a previously agreed upon law is therefore nothing but the arbitrary enforcement of law by an executive power overstepping its prerogatives. Even if the end is laudable, DACA was flawed from the beginning because of the violation of the legislative will it occurred.

 

In the midst of such a volatile political context, it is important to go beyond Trump administration’s anti-immigrant slurs and to rather consider Sessions’ rationale, not through the scope of securitarian jargon criminalizing undocumented people, but with respect to Federal institutions and their proceedings. First, DACA’s abrogation by the Trump administration is an enforcement of law as it stands in the respect of the law on the books. Yes, the real intentions of the Trump administration may not be the best for undocumented people, however it is the best constitutional decision that could have been taken regarding what was aforementioned.

 

Attorney General Jeff Sessions affirmed his willingness to ensure the respect of the rule of law. Notwithstanding substantive consequences, it is a fair decision. When promulgating this executive order Obama implemented a temporary relief for a group of people he deemed had to be protected. Nonetheless, it would be a sophism for the Democrats to say that Trump is responsible for today’s situation. Administrative acts such as Executive Orders are the expression of the will of the Administration, not the people. The President not having any legislative powers, Executive acts are subjected to unilateral alterations. Discretional short-sighted Executive whims cannot supersede in-depth bipartisan laws enacted by Congress.

 

In this matter, the easy answer when looking for someone to blame would be aiming at Donald J. Trump, ever-lasting cold-hearted transgressor using the rule of law as a Trojan horse to strengthen his crumbling political leadership. He is no different from other former presidents who used constitutional tricks and soppy rhetoric to get around constitutional rules in the best fashion they could. Not that Obama is the only one to blame, but moral arguments should not be instrumentalized to circumvent lack of approval or failed political leadership. In today’s context of rising populism and dwindling trust in politicians, trying to stretch the rules and relying on legal uncertainties do no help to fight the widespread feeling that the People have no voice.

 

As we have seen Presidential Executive orders are an efficient mean to achieve clear-cut policies expeditiously,  and the holder of the Highest office in the Nation is granted with the right to enact laws on his own, such orders reflect Executive weaknesses by going against the democratic will. The flexibility granted by the supreme Law is not pledge of best practice. Constitutionality is not analogous with deep-rooted efficiency. If considering procedural rules as a Trojan horse hurts politics, fighting for substantive fairness is, nevertheless, an expression of real political leadership. Democracy should not be a contest of Odysseus deceptions. Trojan horses have nothing to do in the realm of the rule of law, neither should they help building walls or destroying them.