Attorney General Jeff Sessions has announced that, in six months, the Trump administration will terminate DACA, the Obama-era program that allows young undocumented people, the ‘dreamers’, brought to the United States as children to live and work here legally. The decision lacks both justice and compassion.
The move is part of Trump’s push for legislation that will crack down on immigration, a signature promise during his campaign. Yet the president has hedged his decision with reluctance and moderate rhetoric. “We will resolve the DACA issue with heart and compassion—but through the lawful democratic process,” he said, claiming to have “great love” for the 800,000 ‘dreamers’ whose lives will now be upended. He touts his crackdown on immigration as an assertion of “lawful process,” since he’s hoping that Congress will take the heat: he wants them to support his attacks on sanctuary cities, cut immigration in half, and help him build a wall between the US and Mexico.
Trump’s talk about “heart” reduces compassion to mere emotional posturing. He fails to comprehend that mercy is a legal principle. From its roots in the middle ages, the tradition of common law has always balanced justice and mercy. In fact, sanctuary is an example of that balance: in England, foreign merchants, debtors, and felons could, under the law, seek shelter from prosecution in a church or monastery—sometimes permanently. Universities, too, could provide sanctuary for those fleeing violence or prosecution.
Modern universities that have declared themselves sanctuaries specifically for DACA students are not simply scofflaws. Like sanctuary cities, they are part of a centuries-long tradition. In that context, they are making a non-violent demand for a genuinely compassionate legal system. DACA and other programs protecting immigrants, like Temporary Protected Status program, offer lawful shelter from prosecution for people in particular circumstances, just as the medieval church once did.
To be sure, the existence of legal mitigations does not mean that laws can simply be ignored at whim; legal systems, whether medieval or modern, were designed to protect rights and ensure fair treatment of everyone. But any legal system has to adjust to exceptional circumstances, and this adjustability is the basis of real compassion. If the law is not flexible enough to grant mitigations and exceptions, if it offers only strict justice, then no amount of presidential “heart” can make the legal system truly just.
American law makes other spaces for mercy: courts regularly take into account the circumstances of a crime in assessing wrongdoing and in deciding sentences. Moreover, from medieval to modern times the common law tradition has contained the possibility of presidential pardon—a legal mitigation with which Trump himself is familiar, having recently put it to use for former Maricopa County (Arizona) Seriff Joe Arpaio, whose racial profiling and detention of immigrants in harsh conditions had led to a contempt conviction. Indeed, in response to the ongoing investigation into his campaign’s collusion with Russia during the 2016 election, the president has reputedly looked into the possibility of pardoning his own advisors, family members, and even himself.
Pardon differs from modern-day sanctuary in one stark way: those who are pardoned have committed crimes, while ‘dreamers’ are by definition innocent of any crime except having been brought to the US at a young age. Trump’s claims of “heart” and “compassion” and “love” only expose the cruel and arbitrary violence of his decision and the profound cynicism of his immigration policy.