DACA and How Even Moderates Are Conservative

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This post is a continuation of the last post, and to begin with I think it’s worthwhile to spend some more time expanding on the idea of kicking someone when they’re down, or dancing in the endzone, and how to distinguish those actions from actions which may be annoying and even objectionable for other reasons, but are otherwise in the realm of a “fair fight”. And whereas last time I mostly focused on the left, here I’ll largely be speaking about the right.

Several people have recently asked me what my thoughts are on the end of Deferred Action for Childhood Arrivals (DACA). And since many people view this as an example of the right kicking someone while they’re down, it seemed worthwhile to talk about it, but before diving into that aspect of it, I should mention that, in some respects, it’s an even greater example of how the media amplifies the perceived extent of the crisis, with the majority of the coverage being best compared to screaming. This screaming is nothing new in the age of Trump, but as usual it does make it hard to get to the bottom of things.

When you do take the time to strip away the accusations of racism and cruelty, it appears that Trump has done something pretty savvy, even if he’s not very good at selling it that way. (Though once again that may be as much a statement about the media as it is about Trump.) To understand why it’s savvy, a little bit of history is in order.

To begin with, DACA is not a law, it’s an exercise of prosecutorial discretion, and kind of an iffy one at that. What’s prosecutorial discretion? Well, as the executive, the president is in charge of enforcing the laws, and given that there are somewhere north of 11 million illegal immigrants he’s perfectly within his rights to prioritize the prosecution of drug dealers, and repeat offenders, and terrorists above the prosecution of those who arrived when they were children. And if that’s all it was, not only would Obama have been completely within his rights. But if Trump had later come along and prioritized prosecuting children, or even said he was going to prosecute everyone equally, that wouldn’t be so much kicking people when they’re down as it would have been just colossally stupid.

The problem and the iffiness comes in when Obama additionally decided to create a formal government program where these Dreamers (a name for those covered by DACA, for reasons which are not worth getting into) could apply for two year work permits, get social security numbers and largely behave as legal residents, though with no path to permanent residency or citizenship. This is where the iffiness comes in. The formality of the whole process makes people question whether this doesn’t go beyond simple prosecutorial discretion. And it seems obvious to many (myself included) that it’s more properly viewed as an example of the executive branch usurping the law-making power of the legislative branch.

Because of this questionable constitutionality, ten state attorneys general told Trump that if he doesn’t end DACA, they’re going to challenge it in court. And, supposedly this is what prompted his action on the topic. It’s a sign of the times, and the of war I’ve been talking about, that shortly after Trump made his announcement, other state attorneys general said they’re going to sue Trump if he does end DACA. The fact that they would even try that is a pretty big piece of evidence both for my claim that the left is winning, and also my previous points about the power of the judiciary.

Now you could argue that the demands of the initial set of attorneys general was just the cover Trump was waiting for to do the racist thing he always wanted to do, but it’s also unclear what the result of an eventual legal challenge would be, given the facts I just outlined. If Trump had decided to do nothing, certainly one scenario, would be for DACA to make it all the way to the Supreme Court, and be struck down and end immediately without the six months of warning that Trump is giving.

As far as I know there’s no reason Trump couldn’t have ended DACA immediately, but as I just alluded to, he didn’t, he is waiting six months, and he is urging Congress to use that time pass a bill replacing DACA. Now he could be insincere about this or he could be outright lying, but this is the savvy part I was talking about. Objectively DACA, as implemented by Obama, is of questionable legality, and could end up getting overturned if it actually ended up before the Supreme Court. If it were an actual law, passed by the actual legislature it wouldn’t have that problem. This is what Trump claims to want. Given all this, is Trump kicking the Dreamers or the Democrats while they’re down?

First, as you’ve probably already gathered, the six months is a very non-dancing in the endzone move, because, as I said, there’s no legal reason he couldn’t have ended it immediately, but he didn’t. Second, whether you believe his protestations or not, he is going out of his way to signal that the whole thing has left him very conflicted. Here’s what a recent article said about it:

“To me, it’s one of the most difficult subjects I have, because you have these incredible kids,” Mr. Trump said at a recent White House news conference. He said he would deal with the matter with “great heart,” but nodded to the political difficulty of doing so.

This was from an article in the New York Times titled Trump’s Soft Spot for Dreamers Alienates Immigration Hard-Liners, so if he’s dancing in the end-zone the rest of his “team” isn’t celebrating with him.

This is not to say things couldn’t change. As I pointed out part of DACA was that those who wanted to participate in it had to register. And as many people have pointed out, having registered they are now much easier to find and punish should ICE, or Trump or Sessions decide that’s what they wanted to do. Let me be clear, while I don’t think the way DACA has been handled so far qualifies as kicking people while their down, this definitely would. As the kids say, it would definitely be a “dick move”.

I know that many people are convinced, that this is exactly what will happen. Maybe… But given Trump’s statements on the subject and the irrationality of prioritizing these people ahead of criminals and terrorists and the like, I’m betting against it. This is not to say that if DACA is rescinded that there won’t be a story here and there of a Dreamer being deported, but this is one of those cases where the plural of anecdote is definitely not data. I’m saying there will be no large scale, systematic deportation of Dreamers if the program is eliminated.

Of course, in my last post, I said that in some respects it doesn’t matter what the facts are, what matters is how people perceive things, and certainly, regardless of the facts, there are people who feel that the revocation of DACA is a form of dancing in the endzone. And, to be fair, I can see where they’re coming from, though honestly this is at least as much Obama’s fault as Trump’s. Allow me to explain: if Obama had made it clear from the beginning that this was merely prosecutorial discretion, that it wasn’t a change in the law, it wasn’t a new program, that he was just temporarily telling federal prosecutors to de-prioritize this category of offenders, then things would currently be in a very different place. First the 10 state attorneys general I mentioned earlier would have no standing for a lawsuit. Second, there would be no Dreamer information for Trump or anyone else to abuse. Third, the incentives for keeping it vs. getting rid of it would be completely different, with elimination being far more controversial than it currently is. Thus, while people may view it as dancing in the endzone, if it is, it’s something of an own goal. (To completely butcher the metaphor.)

Having spent a lot more time on DACA than I intended, are there any other examples of the right, or specifically Trump, kicking people when they’re down? Or to make it even more broad, what has Trump done to deserve his evil overlord status? After discussing my DACA predictions with one of my friends I asked him that question, and he offered the memo Attorney General Jeff Sessions issued back in May as a good example of Trump being malicious. The memo he was referring to instructed Federal Prosecutors to seek the toughest charges and the maximum possible sentences available, especially for drug crimes.

I remember this memo well. I was actually at a fundraising breakfast for the Rocky Mountain Innocence Center the day it was issued and the federal public defender who had invited me, told me the news. My feeling now is the same as my feeling then, this is a very bad idea. However, I don’t think it’s an instance of kicking the other side while they’re down, or even of conducting politics unfairly. I would say, rather, that this particularly policy represents a genuine difference in ideology. Session’s ideology is the War on Drugs, and while I think it has been fairly conclusively shown that this War is a failure (like so many of our recent wars) the idea of handling the drug problem in this fashion has a lot of history behind it, it’s not just something Jeff Sessions came up with to punish the poor. To be clear, I think it does punish the poor, but it’s not something specifically designed by Sessions with that end in mind.

Returning to Trump, what else is there? I know I said that I would look at things from the other side, but I’m having a hard time thinking of any more examples. Trump has made a lot of noise, and said a lot of bizarre things, but what has he done that could be considered dancing in the endzone? There’s the travel ban, which just the other day got some support from the Supreme Court, but given that the ban doesn’t even involve citizens, to say nothing of people who voted against Trump, it hard to argue that any face-stomping is going on.

Then I suppose there’s the Obamacare repeal, but, again, I’m not sure this fits any standard of gloating or unfairness, given that the Republican congress has been promising to do it for the last six years, and, perhaps even more important, given that they have so far failed.

So there you have it, I’m happy to call out instances of kicking people while they’re down on the left and the right, but I’m not seeing a lot of that actually happening on the right. If you feel like I’m missing some egregious (or even not egregious) example, please let me know, but in the absence of examples of what not to do on the edges, I’m going to spend the rest of this post looking at what should be done closer to the middle. The kind of behavior we should be encouraging regardless of our political affiliation. In this I was inspired by a recent article, Centrism: A Moderate Manifesto.

Though before I get into the article, a word about moderation. The saying, “Moderation in all things” is a phrase commonly used by Mormons. And many people, incorrectly, assume that it can be found in the scriptures, generally imagining it to be in the Word of Wisdom (the part that instructs us not to use alcohol or tobacco.) As it turns out that phrase doesn’t appear anywhere in the scriptures, nor is it especially useful when speaking of religion. No one thinks it’s a good idea to tell people to be moderately charitable, or moderately obedient, or moderately chaste. Outside of religion, there are times when it’s not even particularly useful in politics. I think the national debt is a situation where moderation has landed us at the bottom of a very deep pit. And there was no moderate course to beat Hitler. Finally, as David Lloyd George said, “There is no greater mistake than to try to leap an abyss in two jumps.” All of this is to say that moderation and moderate behavior will not solve all of our problems, but, I would argue, in the current crisis, that it would help with most of them.

In the last post I mentioned that there are some people who think that there is no war, that the truly radical elements off the far-left and far right are tiny and that we have more in common, and things are better, than we think. I dismissed this argument for a couple of reasons which I won’t bother to rehash, but I do agree that there is no giant pit, there is no Hitler, (no, not even Trump), and there is no vast abyss, at least not in the areas people are fighting about. Meaning that moderation might in fact be the best strategy, so what is the “Moderate Manifesto” and what does it recommend?

It recommends, among other things, centrism. What is centrism?

Understood properly, centrism is a consistent philosophical system that attempts to guide political and cultural systems through change without paroxysms of revolution and violence. The centrist, in this sense, believes that political and cultural progress is best achieved by caution, temperance, and compromise, not extremism, radicalism, or violence.

While the author doesn’t use this term, I think he’s basically describing what I call prefer to call gradualism. Gradualism recognizes that things will change, that, as I pointed out in the last post, statues will get torn down, moral standards will change, technology will make certain things possible which previously weren’t. But, currently, whether you call them the left or progressives or democrats, they have rejected doing anything gradually. Or to use the terms of the article, they have rejected caution, temperance and compromise in favor of extremism, radicalism, and increasingly, violence.

This injunction to slow down shouldn’t seem that conservative, but I think these days that’s the only way to view it. And this is why there are so few examples of conservatives not playing by the rules, because playing by the rules is basically all they have left. Having largely failed to conserve much of anything, particularly from the standpoint of morality, they are now happy if they can just slow things down a bit. Despite what people claim, there is no radical maneuver the right can pull which will somehow magically turn American into Nazi Germany or the Handmaid’s Tale. Instead, they’re reduced to saying, maybe if we’re going to give residency to a bunch of Dreamers we should pass a law to that effect. To which the left screams, “Racist!”

(And, again, I know I mentioned this already, but the idea that some states would claim that it would be unconstitutional for Trump to get rid of DACA really does astound me to no end.)

I would, in fact, argue, that by encouraging even a small amount of gradualism, that rather than being a “Moderate Manifesto” the article, when considered in relationship to what’s actually happening, ends up being, de facto, a strenuously conservative manifesto.

To give you an idea of what I mean here are a few examples:

The article claims that the centrist/moderate:

...like the conservative, is therefore worried about radical utopian proposals because the centrist fears that they might inspire dramatic alterations that upset a reasonably successful social order.

But then goes on to say that:

The centrist, however, is equally skeptical of radical libertarian ideas on the Right. The modern welfare state, whatever its flaws, has done a pretty good job of holding together a broad and largely urbanized society in which private charity cannot solve the worst problems of poverty.

You might assume from this that I’m wrong, that he is in fact advocating a position halfway between. The problem is that the modern welfare state is in zero danger of being rolled back to some sort of libertarian laissez faire fantasy (except, perhaps, through catastrophic collapse). And if you doubt this consider that the Republicans couldn’t even get rid of Obamacare, and that even if they did, it’s most likely replacement is universal healthcare.

While, on the other hand, we’re surrounded by radical utopian proposals, from free college, to universal basic income, to a society where people are allowed to choose their gender. Given that some of these, like the last one, have already been implemented, which ideology really poses more danger to the centrist/moderate point of view?

I think the author is aware of this issue, and he goes to great pains to distance centrism from conservatism:

But, there are two great differences between the centrism here conceived and conservatism: (1) Centrism does not loath change and (2) it does not accept a transcendental (religious) moral order.

I believe I’ve covered the first point. I think most conservatives have come to terms with change (certainly they don’t loathe it) they just ask a few things:

• That they be able to opt out of the change, particularly if there’s no appreciable harm to anyone else (see things like the current cake fiasco)
• That we could slow things down, I mean at least a little bit (see the last post on the statue controversy which has already progressed to the decapitation of the statue of a Spanish Priest.)
• That if we’re going to change things, that we could at least follow the rules. (See the DACA discussion earlier in the post, but also everything I’ve said about judicial activism and the complete abandonment of the process for amending the Constitution.)

Accordingly this first difference is not as great as he makes it out to be, particularly when you look at how things actually operate this late in the game.

On the second point whatever the transcendental religious underpinnings of conservatism in the 19th and early 20th century, is anyone going to seriously argue that these underpinnings are still a factor in conservative politics today? Or that if they are that it’s had any effect whatsoever on the law? I understand his fear, but once again I think he’s taking a strong stand against something which in practical terms isn’t really a factor. I defy you to name one major US policy with a basis in religion. Abortion? Same Sex Marriage? What are the actual effects of the conservative transcendental religious underpinnings he claims to be fighting against as a centrist?

Perhaps you would point at Trump’s ban on Muslim immigration, but recall that every court in the land struck down even the whiff of a religiously based test, and that Trump is having difficulty implementing even his narrow seven nation ban.

On the contrary, as I argued in a previous post, if anyone has a monopoly on transcendental religious beliefs influencing policy it’s the left and the Religion of Progress. I refer you to that post for a more complete discussion of how the transcendental religion of the left plays out, but if you need a current example I refer you to the recent controversy around professor Amy Wax who the gall to say that certain behaviors are better than others and that certain cultures do a better job of encouraging those values. In response to this argument that all cultures are not created equal, the argument from the transcendentally religious left (though they will hardly admit it’s a religion) is that somehow, magically, all cultures are essentially equal?

The grand point I’m trying to make, is that the left/progressive side of things is so dominate, so fanatical, so radical, and there’s so much potential for violence (all the things supposedly even moderates are opposed to) that we face a real chance of having the left break the country, if for no other reason than just because how fast they insist on going. I know that all “right-thinking” people are supposed to be on the side of the progressives and social justice and against Trump. But at this point, even if you’re a moderate, I think it’s time to join with the conservatives, and to paraphrase Buckley: to stand athwart history and to at least yell, “Slow down!”

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If you can at least agree, that with everything going on that at, a minimum, we need to take a deep breath, and pause for a moment to consider things, then perhaps one of the things you might consider is donating. If, on the other hand you think progress and change need to speed up, then in lieu of donating, could you email me, because I’m really curious how you got here.