Jim Acosta Deserves Due Process

Due Process of Law is a bedrock principle of the US Constitution. No one can be deprived of life, liberty or property without Due Process of Law. It is a principle that applies to the Federal Government through the Fifth Amendment, and to the State Governments through the Fourteenth Amendment. 

The concept of Due Process is actually fairly simple at its core. If the Government wants to take away a person’s right, whether it be property or a federal benefit, the Government must give notice of its intent to do so. The notice must sufficiently disclose the Government’s reasons. The person must be given a meaningful opportunity to defending his or her right. The Government must give the person a fair hearing. 

Due Process is messy. It’s inefficient. Due Process causes delay. That is by design. That is because a democracy is not supposed to do the most expedient thing; it is supposed to do the right thing. Thus, while it may be expedient to trample on the rights of a minority class for the benefit of the majority, Due Process prevents that from happening unless the Government has a darn good reason. To put simply, minority rights are protected against pure majority rule. 

And this is what frustrates President Trump time and time again in the manner that he runs the Federal Government. Trump wants things done his way, right away, no questions asked. To tell him he can’t do things his way is a mark of personal disloyalty, not a mark of true patriotism that values the rule of law above all else. 

Coming from the business world, Due Process is not the way Trump operates. He is used to demanding personal loyalty of his employees. He is used to winning negotiations through leverage and strength, not legal virtue. 

It should therefore come as no surprise when Trump expresses disdain for Due Process. We can’t have undocumented aliens come in the country and be given a hearing with the Immigration Courts. That will take too long. We can’t have recounts in the State of Florida. That’s just delay. We should just recognize who the winner is now and move on. 

One of the most egregious examples of Trump’s disdain for Due Process is his treatment of CNN Reporter Jim Acosta. It’s no secret that Acosta’s relentless questioning irritates Trump. He has routinely called Acosta rude and tried to evade Acosta’s questions. Last week, Trump revoked Acosta’s press pass. 

Ostensibly, the White House revoked Acosta’s press pass on the allegation that Acosta assaulted a young woman intern attempting to retrieve the microphone from Acosta. Press Secretary Sarah Huckabee Sanders even tweeted a video to back up her claim. 

The problem is that the White House acted without giving Acosta notice of its intent to revoke his credentials or an opportunity to defend himself. In short, the White House denied Acosta Due Process. 

The denial of Due Process is particularly egregious in this case. Many claim that the video Huckabee Sanders released, which happened to originate from Alex Jones’ Infowars, was doctored. Governments should never be permitted to take away a person’s right through trumped up evidence. Thus, the evidence must be tested and Acosta must be given an opportunity to attack its reliability. Jim Acosta must be given Due Process. 

Acosta and CNN have filed a lawsuit over Acosta’s press credentials. One of the allegations is the denial of Due Process in violation of the Fifth Amendment. It is a decision that the court must decide properly in order to reign in Trump’s resistance to Due Process and temper his more dangerous authoritarian tendencies. 

By: 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.