Thoughts for Opening a Serious DACA Discussion

Now that the Democrats, and their weakened Resistance during flu season, have caved and agreed to stop their much-ballyhooed Schumer Shutdown of the Federal Government, Republicans can look forward to continuing their assignment to lead America. Much is made, disingenuously, of the Republican “control of the Government” — the House of Representatives, the United States Senate, the White House, the Supreme Court — but fair-minded observers have begun recognizing that, if a party does not hold 60 seats in the Senate, it does not wield quite the control that a mere Senate majority would suggest.

I have argued that the “Byrd Rule,” the brain-child of a Byrd who had been Exalted Cyclops of the Ku Klux Klan, and indeed the entire 60-vote-mishmash that the Senate has concocted as part of its arcane conduct, needs to be revisited. The United States Constitution does indeed require two-thirds super-majorities for certain specific purposes. For example, two-thirds of the Senate is needed to ratify a treaty. Art. II, § 2, Cl. 2. Two-thirds are needed to override a Presidential veto. Art. I, § 7, Cl. 2-3. Two-thirds are needed as part of the process to amend the Constitution. Art. V. Two-thirds are needed to convict on impeachment. Art. I, § 3, Cl. 6. But the Founding Fathers (oops, gender-neutral: the Founding Parents) never required that every single thing get a sixty-percent vote. For that matter, nor did they have rules on “budget reconciliation.”

Nevertheless, the 60-vote requirement meanwhile is in place and, regardless of what ought to be, it will be in place for the foreseeable future. That does neutralize Republican control of the Senate despite the GOP majority, and no legislation becomes law unless it passes both Houses of Congress. Therefore, in all fairness, it is not true that “the Republicans enjoy unbridled control of Washington.” No one has had that true control since the disaster of the George W. Bush RINO presidency’s final days opened the door for a massive-though-short-lived Democrat take-over. For a brief moment in time, thanks to incredible Democrat cheating — including but not limited to the corrupt prosecution of Republican Senator Ted Stevens of Alaska and the ballot-stuffing for Al “Fingers” Franken (remember him?) in Minnesota — the Democrats had sixty. That brief super-majority enabled them to steamroll at will, to pass any legislation that Obama wanted and that Nancy Pelosi was content to read after passing.

Yet when they coulda done anything they wanted — even the Democrats did not touch legislating on immigration. Rather, they opted to let the illegal immigrants/undocumented aliens just dream away.

Barack Obama always knew that a President cannot unilaterally allow illegal immigrants to enter this country and for their children to stay. He said so often. Even so, by the end of his White House tenure, he trampled his own words and allowed what became known as “DACA.” For reasons that I have published many times, I refuse to call the children of the Illegals by the name “Dreamers.” Instead, I call them whatever, depending on the individual. Some are wonderful, some less so. Each is an individual. I’m telling you now: None of them is any more a “Dreamer” than you, I, or Freddie.

We now are reaching a critical moment in time when the DACA issue, facing imminent expiration, must be addressed. There are three broad avenues before us: Either those individuals must all be expelled from the country or all be given amnesty or something in between. It is easy to chant slogans, on both sides, but President Trump, his Administration, and Congress all agree that they need to deal with the issue imminently in a way that garners at least sixty Senate votes. But how?

Here is one approach that seems at least a method to open the discussion on this tough question.

First, as a sine qua non, the Democrats must agree to vote in favor of three things: There must be a complete and total, unequivocal end to chain migration. Period. Second, there must be a complete and total, unequivocal end to the immigration lottery. Period. Third, they must agree not merely to “authorize” but to vote a full appropriation, up front, for the entire cost of building the Wall — up front, unequivocally and irreversibly. We can leave to the experts on homeland security whether each and every centimeter along our southern border from the Pacific to the Atlantic needs to be walled, whether wall needs to be constructed along rocky terrains, at the Rio Grande, and at other areas that would seem reasonably impassible such that alternative methods — drones, high-tech surveillance, and the like — might prove even more effective in those zones than walling. President Trump’s homeland security experts can decide that. Regardless of finessing the details of what works best and where, at bottom the Democrats must agree to vote in favor of those three things. Exclamation point.

The Wall in particular will protect America from the three gravest perils of porous borders and a broken immigration system: (i) the unregulated smuggling of deadly opioids into the United States; (ii) the exploitative and inhuman illegal trafficking of human beings, particularly trafficking in unattached women; and (iii) the threat of terrorists entering our country undetected by their exploiting the weakest link in our defenses.

Now to DACA, which understandably could be part of that package. It seems that all Americans, except outright xenophobes, support some ongoing immigration to the United States, now and in the future. Many of us who oppose the porous borders and America’s immigration mess of the past half century still believe that America benefits robustly when the right kinds of immigrants come in. No country has immigrants and their descendants comprising as high a percentage of that country’s citizens as we do, and many of us believe that, amplified by capitalism and free enterprise and a belief in freedom, that has been part of the success of the Great American Experiment. Ronald Reagan had Irish roots, as did John Kennedy, as does President Trump’s chief of staff. Sean Hannity, too. President Trump’s roots are German. So were Babe Ruth’s and Lou Gehrig’s. Rudy Giuliani has Italian roots. So did Justice Antonin Scalia. So does Justice Alito. Laura Ingraham — isn’t she wonderful on Fox! — has familial roots from Poland. Likewise the late Zbigniew Brzezinski. And of course The American Spectator’s own Wlady Pleszczynski. Look at the people whose politics you love most: a whole bunch of them descend from overseas. Look at those whose politics you hate most but who, honestly, are an essential component of the quiltwork that makes America great. Wonderful Americans of all stripes, political viewpoints, of both of the two genders, of different religions and ethnicities who descend from Japan, from South Africa, from China, from Iran, from Cuba, from Zimbabwe, from South Korea, Vietnam, Russia, Haiti, Scotland, Thailand, the Ukraine, Mexico, Hungary, Greece, Guatemala, England, Romania, Wales.

Even from France.

Really, this quiltwork is America. It is an aspect of what makes us great — and always made us great. Opening our doors to a reasonably controlled pace of immigration, diverse in terms of countries of origin, and historically with the requirement that the immigrants prove they will be self-supporting, law-abiding. Historically, they would have to learn English, pass a civics test, and pledge undivided loyalty to our way of life. Indeed, their passion and love for America even helped motivate some ungrateful, unappreciative lugs who were born here and who stopped appreciating America, to realize that, if one is not engaged passionately in building this great country, then others are ready to push you aside and, under the rules of American fair play and “best-competitor-wins,” take your place.

The solution of DACA should start from there. That we are going to welcome a certain number of immigrants anyway. And we need to reimpose the kinds of merit standards that existed when my grandparents came here from Poland and Tsarist Russia. They needed to prove they would be self-sufficient and that they had people who would vouch for them and support them if they stumbled, because Uncle Sam would not be picking up their tab. That is, once they got considered at Ellis Island — then the point of entry for Legals like them — they had to show that they had people who would see they are supported, that they had documentation, that they carried no diseases of national epidemiological concern. It was a time before food stamps and welfare, before sick days and Medicare, even before family leave and paid vacations. My grandparents worked six days a week, sacrificing and risking mightily by not working on Saturdays, the Shabbat (Sabbath) Day of Rest, and they never took a penny from the Government. Although they arrived speaking only Yiddish and a few words of broken Russian or Polish, they immersed themselves in learning English, and all their kids went to public school and learned English. Public school began with a prayer and the pledge. No bilingual education for them nor for their kids — nor for that whole generation of immigrants from Italy, Germany, Poland, and other non-Anglophonic lands; either you learned to speak English, or you missed recess, lunch, and the bus home because no one was there to translate.

Virtually all my uncles and aunts went into business or attended college. None got arrested for anything, not even jaywalking. My grandparents were the best of citizens, stood taller than their physical heights would have suggested possible when they heard “The Star Spangled Banner.” Before class each day, their children and all kids proudly pledged allegiance to the flag of the United States of America and to the Republic for which it stands. They knew, from elementary school forward, that they love this country and were so lucky to be here, even if they did not quite understand that last part about this country being “invisible with liberty and justice for all.” And, in pursuit of becoming a true American, my maternal grandfather even set himself to learning the rules of baseball. He loved the hometown Dodgers, saw them lose each post-season like clockwork to the Yankees, learned that in America you have to be a “good sport,” better yourself and try even harder, and “wait till next year.” His beloved Dodgers finally won it all in 1955. And then when they moved to Los Angeles, abandoning his Brooklyn neighborhood three years later, he hated them and Walter O’Malley from then on. The Cossacks and Tsar Nicholas no longer mattered. Zeyde (Grandfather) had become a Torah-observing American.

And that is where a solution to DACA begins.

Given that America is going to accept future arriving immigrants going forward anyway, President Trump, his advisors, and the Republican leaders in the Congress, along with Democrats who are willing to take a furlough from The Resistance before it consumes them, should sit down and establish formal legislated standards for future immigration into the United States. How many people we will admit per year. A way to guarantee that no immigrant or nuclear-family member admitted can apply for any Government assistance for a period of at least ten years — no welfare, no food stamps, no assistance whatsoever. A requirement that the immigrant learn American civics, learn English reasonably well, and pledge loyalty — the way it always used to be. And none of this kneeling-at-the-flag garbage. Standards for the next great American century. An understanding that a conviction for any felony or even a specified class of “deportation-eligible misdemeanors” means automatic and permanent expulsion from our country — no $200, no passing “Go” — and an added requirement barring the Justice Department or local police agencies from “pleading down” any felony or formally specified “deportation-eligible misdemeanor” charges to lower charges when the accused is an immigrant within the first ten years of entry into the United States. (For these purposes, there should be a formal federal administrative rulemaking pursuant to 5 U.S.C. § 551 et seq. that would identify and distinguish between classes of “deportation-eligible misdemeanors” such as violent actions against persons or property, financial crimes and related defalcations exceeding a specified dollar amount, specified classes of reckless driving and driving under the influence of specified types of controlled substances, and the like — versus “non-deportation-eligible misdemeanors” that might be exemplified by such situations as a hapless pet owner whose dog with no prior violent history breaks loose from its master’s leash in public; certain specified kinds of traffic infractions; speeding at no more than a certain designated amount above a posted speed limit; and the like. The formal rulemaking process can sort out the details.)

More: A clear policy that not only bars polities from declaring themselves “Sanctuary States” or “Sanctuary Cities” but that also criminalizes any state or municipal politician who tries to legislate otherwise, subjecting them to federal incarceration — exactly as we did 150 years ago and would do tomorrow if some state or city politico decided to defy the federal government and try re-imposing slavery. We went to war against “sanctuary slavery states” that defied the federal government. More Americans died in one day at Sharpsburg/Antietam than died any other day in American history. More Americans died in two days at the Battle of Shiloh, in Tennessee, than died in any other two days in American history. More Americans died in three days at Gettysburg than died any other three days in American history. We went to war against “Sanctuary States” that defied the federal government on issues that duly devolve on the federal government to oversee. When states break ranks from the feds and defiantly print their own money, that is called the felony of counterfeiting. Apparently, the Mueller investigation looked at whether Lt. Gen. Michael Flynn had the temerity to discuss foreign affairs with a foreign government ultra vires. We never before have allowed states to make their own laws on matters that the Constitution reserves for the federal government and, now that Obama and Holder are out, it is time to reimpose the American Constitution.

All of which leads to an opening proposal for solving DACA: Set up the formal rules for immigration that will apply henceforth. Make clear that the rules are immutable, and legislate them in a way that sets them in stone with two-thirds super-majority requirements for future revision. And then, with the above first three sine-qua-non negotiating requirements in hand, offer this meaningful DACA compromise concession: All people who illegally were brought into this country as “children” (and the negotiators can hack out the precise age range that defines “children”) may immediately go to the front of the line to apply for American citizenship under the new rules adopted for immigration going forward. And those standards are based on one criterion: merit. Those “children” — not their parents, uncles, aunts, or second cousins — get to fill out the first applications before anyone else does. And those of them whose applications are accepted — again, based solely on one criterion: their merit — count against the total quota of all immigration into the United States agreed upon by the negotiators for that year.

Thus, these applicants fill out the forms and demonstrate that they have met the new language requirements of English mastery. They document that they never have been convicted here of a felony or even a “deportation-eligible misdemeanor.” They prove that they are self-supporting, that they have others in America who will support them if they stumble, because they sign their acknowledgement that they will be ineligible, under any circumstances whatsoever for the next ten years, to receive welfare, food stamps, or other Government assistance, federal or state or municipal. Indeed, they further sign their acknowledgement that their mere application for such federal, state, or municipal Government assistance during their first ten years after acceptance will itself constitute a federal “deportation-eligible misdemeanor” — and they sign their understanding that such crime itself will subject them to immediate deportation upon fair trial and conviction. Towards that end, the negotiators also must agree to extend increased funding to expand the number of border control agents and immigration Administrative Law Judges now handling deportation matters, and they must agree to new “rocket docket” rules speeding up hearing dates and deportation proceedings, and rules expediting implementing actual deportations rapidly.

That seems a reasonable start for discussing getting this thing done the right way, living with the awful consequences of eight years of Obama, eight years of Clinton, and also twelve years of Bushes and RINO legislatures that built their bridges-to-nowhere and that gave succor to this corroded system that leaves us with this mess that President Trump hopes to solve in 2018. At least that seems a start.

Dov Fischer
Dov Fischer
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Rabbi Dov Fischer, Esq., a high-stakes litigation attorney of more than twenty-five years and an adjunct professor of law of more than fifteen years, is rabbi of Young Israel of Orange County, California. His legal career has included serving as Chief Articles Editor of UCLA Law Review, clerking for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and then litigating at three of America’s most prominent law firms: JonesDay, Akin Gump, and Baker & Hostetler. Through the years, he has practiced both in the United States federal courts and in the state courts on a broad range of case matters, gaining expertise in virtually every subject area of complex civil litigation including labor and employment law, securities litigation, federal government contracts litigation, bankruptcy law, ERISA law, Hague Service Convention and Hague Evidence Convention practice, professional malpractice law, entertainment litigation, federal and state fair-credit-reporting requirements, the filed-rate doctrine as it affects carriers on land and rails, insurance bad faith, cybersquatting, commercial lessors’ rights, international contracts, fair-housing litigation, the law of computer role-playing games, federal and state antitrust matters, director and officer liability, defamation and false-light litigation, unfair-business-practices law, and the fuller gamut of advanced torts and classic breach-of-contract case matters. He also has practiced appellate law successfully, authoring the winning brief in Bierbower v. FHP, Inc., 70 Cal. App. 4th 1, 82 Cal. Rptr. 2d 393 (1999). His UCLA Law Review analysis of director-and-officer liability issues in depository institutions has been cited in a broad range of federal district court and appellate circuit opinions. Among his major complex litigation representations, Rabbi Fischer represented Philip Morris during the California tobacco litigation, overseeing their massive document production effort; and the accounting firm of KPMG Peat Marwick during the Orange County bankruptcy litigation. In addition to representing such other major corporate clients as Samsung, Hughes Aircraft, Experian, KPMG Peat Marwick, Albertson’s Stores, Embassy Suites, Spencer Gifts, Cardinal Health, BOC Gases, IHI Danmark, Wet Seal, Bioware (“Baldur’s Gate”), and Occidental Petroleum, Rabbi Fischer also has devoted substantial pro bono efforts unique to his background, working to prevent unwarranted autopsies, inducing recalcitrant spouses to grant Gett-based Jewish divorces, representing communal rabbinic leaders sued for advocating unpopular but courageous positions, and participating in representing the successful plaintiffs’ class in the nationwide class-action lawsuit brought against European insurance companies by surviving families of Holocaust victims. He also disappointed his then-young son when he successfully represented a client named Stan Lee in a cybersquatting defense against an eponymous plaintiff whose colorful literary output his son admired. In his rabbinical career, Rabbi Fischer has served three terms on the Executive Committee of the Rabbinical Council of America, is Senior Rabbinic Fellow at the Coalition for Jewish Values, has been Vice President of Zionist Organization of America, and has served on boards of Jewish Federations in New Jersey and in Los Angeles, on boards of the American Jewish Committee, B’nai Brith Hillel, and several others. Earlier in his career, he was national director of American Friends of Likud / Herut Zionists of America, and he participated with 35 other once-young families in founding, building, and living a year in a then-new American community in Ginot Shomron, Israel (referred to by Israel’s opponents as a “West Bank settlement”). His writings on contemporary political issues have been appearing nationally for forty years, dating back to his undergraduate years at Columbia University, where he amazingly was elected to represent the college student body in the University Senate. Those writings have appeared over the years in publications including but not limited to the Wall Street Journal, the Los Angeles Times, the Jerusalem Post, National Review, American Greatness, American Thinker, The Weekly Standard, Frontpage Magazine, American Thinker, Jewish World Review, Israel National News / Arutz Sheva, and in other Jewish newsmedia in American and in Israel. He also is the author of two books, including General Sharon’s War Against Time Magazine, which covered the Israeli General’s 1980s landmark libel suit. Among his proudest honors, Brooklyn-born Rabbi Fischer has been named an “Honorary Kentucky Colonel” by four different Governors of that Commonwealth recognizing his service to and passionate love of that state, has been honored by law students for faculty recognition, has received national awards and recognition for his academic and scholarly writings, and is a winner of an American Jurisprudence Award in Professional Legal Ethics.
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