Remember, the Reason for Kneeling During the National Anthem is to Call Attention to a Lack of Equality

In the United States over the weekend, we spent much of the time debating the merits of kneeling for the National Anthem.  Spurred by a tweet by the President, the debate focused on whether athletes should be permitted to kneel during the National Anthem as a form of protest.  Why President Trump decided to make this the time to disparage athletes who choose to express themselves by kneeling is something of a mystery, since Colin Kaepernick first kneeled for the National Anthem over a year ago and this is the third week of the NFL season. 

Nonetheless, his use of social media once again sparked both outrage and support from the American public.  There was also a large group of people who resented having the public attention focused in such a way, citing what they considered real problems, such as the devastation to Puerto Rico by Hurricane Maria or the increasing tensions between the United States and North Korea.

But the problem both with the tone of the debate this weekend, as well as those who bemoaned that we were having this debate at all, is that attention was focused on the whether athletes should be permitted to kneel during the National Anthem, and not on why they were choosing to do so.

Let's face it.  It's not as if Colin Kaepernick woke up one day and thought about what behavior he could do that would anger the most football fans.  Kaepernick took a knee to protest.  In particular, he protested racial inequality in this country; an inequality that was highlighted by the spread of online videos showing police officers engaging in what many thought was unnecessarily violent behavior against African Americans.

This is a debate that makes many white Americans uncomfortable.  It forces Americans to consider that they have been receiving special treatment due to nothing more than the reason that they were born white.  This has been labeled as "white privilege."  And to many Americans, they don't want to think of themselves as privileged.  A good number are hard working, and view their position in life as a result of that hard work and the choice to do things "the right way."

But as I pointed out to my daughter last night, white privilege is alive and well in this country.  Just consider Walmart's state of the art security system: the elderly man at the exit choosing which customers to ask to see their receipt.  Plenty of times, I choose not to bag my purchases at Walmart, mostly because they are big items like cases of water or big bags of dog food.  Still, the fact that I choose not to bag my items should be seen as a security threat.  Yet, I have only once been stopped by the kindly elderly gentleman to see my receipt.  And that was because he stopped an African American family in front of me, who raised a ruckus over why he wasn't stopping me.  The fact is, whenever I have seen that man stopping a customer, it has always been a person of color.

Added to that discomfort is that fact that the National Anthem and the flag serve as powerful symbols of patriotism.  To disrespect the flag is to disrespect the soldiers who died selflessly protecting this nation.

That only raises the question, however, as to why our soldiers have gone to war and died protecting this nation.  Are we simply venerating national symbols because they happen to remind us of the geographic location in which we live?  Or is patriotism something more?

During debates like this, I like to think of my grandfather, who served in the First Army with General Patton, and who fought in the Battle of the Bulge.  Sure, he had a lot of stories about how he cut off Hitler's ear which were entertaining to me as a young boy.  But, as the long-time commander of the local American Legion post, who made speeches at the annual Memorial Day parade, he taught me a lot about patriotism and love for the United States.

When I think of patriotism, I return to a phrase that he repeated often in those speeches.  We took the time to march on Memorial Day because he were honoring those who gave their lives so that we may walk free.  The emphasis I took away was the last part of his phrase, that we may walk free.

What it comes down to is that I am immensely proud to be an American because of our freedom, because of our emphasis on the rule of law; in short because of the principles embodied in our Declaration of Independence and Constitution.  Chief among the self-evident truths our founding fathers proclaimed was that all men are created equal.

To me, therefore, the debate over taking a knee during the National Anthem is important because it calls attention to those principles that make our nation great.  We believe in the right of the people to engage in peaceful protest and to call attention to those issues which are important to them.  In this case, the issue is inequality.  To dismiss the reason behind the protests, no matter how uncomfortable we may feel both over the form of the protest, fails to pay respect to the principles which the United States is supposed to embody.

William J. Kovatch, Jr.

President Trump May Have Done DACA Recipients a Favor

It may not look like it now, but by announcing an end to the Deferred Action for Childhood Arrivals program, also known as DACA, president Trump may actually have done its recipients a favor. 

DACA was a popular program, with many people denouncing the president for announcing his intentions to end it. DACA allowed young people, who were not born in the United States but brought here illegally by their parents, to come out of the shadows and become productive members of society without fear of deportation. 

But relying on the continuation of DACA was bad policy. 

First, DACA was of questionable constitutionality at best. DACA was not created or even authorized by legislation. Instead, President Obama took a small piece of executive authority meant to address situations where the application of immigration law was harsh on an ad hoc basis, and turned it into a huge program. DACA is based on presidential authority to grant deferred action. This is nothing more than a promise not to seek the removal of a person who is otherwise in violation of immigration law. It is not directly authorized by Congress. Rather, it stems from the theory that the person who is enforcing the law has the discretion to choose not to come down with the full force of the law when there is a violation. Think of a police officer who witnesses a minor crime, but chooses not to arrest a person. 

The problem is that by taking this small piece of executive discretion and creating a full program out of it, affecting hundreds of thousands of people, President Obama infringed on the role of the legislative branch. That is, he essentially created law without Congress passing legislation. This can be seen as a violation of separation of powers. 

Several states saw it that way. Citing the extra expenditures the states believed they were incurring on people who were present in the country illegally, these states threatened to sue the federal government to end DACA. These states had been successful in shutting down a similar program that granted deferred action to foreign born parents of U.S. citizens and permanent residents by filing suit in the Fifth Circuit. If the states had filed a lawsuit over DACA, there was a real danger that the program could have been ended by the courts and declared unconstitutional. 

Second, DACA was a very weak solution to the problem.  DACA did not grant the young people who applied for it a legal status. That is, the program did not give the recipients a legal right to stay in the United States. It only gave the recipients a promise not to seek their removal. As a creature of executive discretion, this meant that the promise could be broken by the same executive who granted it. DACA did not lead to permanent residency. It did not lead to citizenship. All DACA did was to keep the young people who applied for it in a holding pattern. Going back to the separation of powers, this is because the president does not have the authority to create legal status, only to ignore the consequences when a person has violated the law. 

Third, the continuation of DACA permitted Congress to remain lazy. While DACA was in place, the young people brought to the country illegally but raised as Americans were not going to be deported. They were given legal authority to work and pay taxes. Even if there was no path to citizenship, there was no immediate pressure on Congress. Why, then, should Congress act?  Just pretend that this non-solution was working and let things continue as is.

Ending DACA is now forcing the issue with Congress. If Congress believes these young people are deserving of relief, Congress must now pass real legislation to protect them. Presumably, this legislation will include a true legal status instead of a mere promise not to deport. Perhaps Congress will even create a method for those who merit it to earn true permanent residency and eventual citizenship. Then, these young people who were brought up to be Americans will truly become Americans. 

Finally, DACA has made these young people more sympathetic. It is easy to say enforcement only and illegals deserve to be sent back, when you haven't met a hard working and moral undocumented individual. But DACA allowed these young people to work openly. It allowed them to win the respect of professors, fellow students, bosses and co-workers alike. When you met a person just making an honest living because of DACA, it was hard not to like them. 

And that sympathy will turn into political pressure. People don't want to see their neighbors, co-workers, friends deported. Businesses, including industrial Giants, will not want to see valued employees suddenly unable to work. Congress will be under pressure to create a real legislative fix. 

The termination of DACA may yet result in a better future for young people brought to this country illegally by their parents. If Congress acts, it could result in a more secure legal status and a path to citizenship. If Congress doesn't act, it will give the American public yet one more thing to add to the list of congressional failures and reasons to vote members out of office. 

William J. Kovatch, Jr. 

The End of DACA; Forcing Congress to Act

DACA, Deferred Action for Childhood Arrivals, was a popular program. DACA was meant to help people who were brought to the United States as children, due to no choice of their own, who were raised as Americans, but who lacked legal immigrant status. 

Despite having been raised here, having gone to school here, and identifying the United States as their home, these children could not hold a job legally. Often, their ability to go to college was hampered by the lack of legal status. Despite being raised as Americans, they had to live in the shadows, avoiding government attention and working in the underground economy. 

DACA recipients were sympathetic. They were stuck in their situation due to now fault of their own. Many were highly talented and very intelligent. If allowed to live and work openly, DACA recipients had great potential. 

To address the situation in which these children found themselves, President Obama created DACA. But the program was imperfect as best, and unconstitutional at worst. 

DACA is an exercise of deferred action. Deferred action is not a legal status. It does not give a person the legal right to stay in the United States. It is really nothing more than a promise; a promise not to seek the removal of a person, even though that person is present in the United States illegally. 

If you search the U.S. Immigration and Nationality Act, you will find that there is no statute that defines deferred action. There is no direct legislative authority for it. All there is in the statute is a reference that those who have received deferred action are eligible to apply for a legal right to work in the United States. 

At best, then, deferred action is indirectly authorized by law. But nothing in the law establishes it parameters. Nothing establishes to whom deferred action may be applied, or under what circumstances. 

Prior to DACA, deferred action was used mostly as an ad hoc fix when immigration law was imperfect. In many cases, deferred action was applied on a case by case basis, for humanitarian purposes when immigration law had harsh results. On occasion, deferred action was applied on a larger scale but on a temporary basis when an immigration program came to an end.  Special protections were granted by law to Liberians in the United States, for example, during the twenty year civil war in their country. When those legal protections expired, President Bush applied deferred action for one year to permit Liberians who had lived in the United States for a long time to adjust to their new situation. 

But before DACA, deferred action had never been used to create a program of immigration relief on such a scale. Indeed, the argument is that President Obama overstepped his constitutional authority as chief executive by creating a program that was legislative in nature. In this case, the president had no direct authority from Congress on creating such a program. No criteria was set by Congress on who would qualify for the program. No parameters were established on how long the program would last. President Obama created DACA whole cloth, establishing his own set of criteria for eligibility and his own judgment with respect to the length of the grant of relief.

To be clear, from the moment President Obama announced the creation of DACA, there were serious questions concerning whether he had violated the separation of powers provisions of the Constitution. The constitutionality of DACA was further called into question when the President created similar programs, one aimed at granting deferred action to undocumented parents of U.S. citizens or permanent residents, and one that was an expansion of DACA, which were defeated in federal courts in the waining years of the Administration. 

Why then, did President Obama use such an imperfect tool to grant such relief?  After all, it was temporary. It granted no legal status. It gave no path to citizenship. It was nothing more than a promise that any succeeding administration could break. It was arguably unconstitutional. 

The answer lie in congressional inaction. Legislation had been pending since 2001 to address the situation of children who had been brought to the United States by their parents illegally. It was called the Development, Relief and Education for Alien Minors Act, or the DREAM Act. Despite originally having Republican support, the DREAM Act died in May of 2011.  When the DREAM Act failed to pass Congress, President Obama forced the issue by creating a program where this who would have received relief through the legislation would be given deferred action. 

President Trump, who publicly expressed support for DACA recipients on numerous occasions, now seems to be on the verge of ending the program. He is doing so despite pleadings by Republican lawmakers, such as Paul Ryan, to give Congress the chance to pass legislation to address the problem. In doing so, he has raised the ire of many in the public who find DACA recipients sympathetic. 

The question now is whether President Trump's actions will finally force Congress to enact a legal solution to the problem, or whether DACA recipients will simply be forced to return to the shadows to hide from being deported from the only home they've known. 

William J. Kovatch, Jr.