RUTHFULLY YOURS

It is hard to believe that it has been 16 years since four passenger airliners were used as de facto cruise missiles to carry out the most horrific terror attack in the history of the United States.

That attack was against the entire United States of America, however, for those who were in New York, Washington and Pennsylvania on that day, the attack was also personal — all too personal.

I will never forget the sight of the ashes from the conflagration at what came to be known as “Ground Zero” fluttering down on my neighborhood in Brooklyn on that day. I will never forget my neighbors screaming and wailing as they watched the televised coverage of that act of violence and destruction playing out just miles from our homes, knowing that their loved ones and friends went to work only an hour or two earlier at the World Trade Center, or in one of the buildings near the World Trade Center complex.

I will never forget what I came to think of as the “stench of death,” the horrible, sickening odors emanating from the smoldering debris at Ground Zero that lasted for months, permeating the air in New York City.

So many of us still suffer from Post Traumatic Stress Syndrome. How could we not?

Today the death count from 9/11 continues to climb as more people, especially first responders, slowly and torturously succumb to the diseases that were caused by their exposures to and ingestion of the toxins released when the World Trade Center collapsed.

In fact, the expenses associated with the massive number of those who were sickened by those toxins will be borne through the passage of legislation known as H.R.1786 – James Zadroga 9/11 Health and Compensation Reauthorization Act. That bill was named for NYPD Detective James Zadroga, one of the first responders who perished because of his exposure to those toxins.

For nearly every year since the attacks of 9/11 I have written retrospectives to lay out how both the Bush administration and especially the Obama administration failed to take the findings and recommendations of the 9/11 Commission into account, particularly where the issue of immigration was concerned.

I provided testimony to the 9/11 Commission about the nexus between the terror attacks of 9/11 and multiple failures of the immigration system.

Last year my article, “Reflections On 9/11’S Vulnerabilities” made my frustrations with the Obama administration crystal clear.

My 2014 article The 9/11 Commission Report and Immigration: An Assessment, Fourteen Years after the Attacks provided and in-depth analysis of the many ways that the Obama administration had not only not acted in accordance with the findings and recommendations of the 9/11 Commission, but actually acted in direct opposition to those findings and recommendations.

Today, thankfully, Donald Trump is the President of the United States and the Attorney General is not Loretta Lynch but Jeff Sessions.

Trump and Session are both clearly committed to enforcing our immigration laws, securing our nation’s borders and addressing the immigration failures and vulnerabilities that the 9/11 Commission identified.

Commentary on the DACA controversy frequently notes that the nation’s nearly 700,000 so-called Dreamers are a law-abiding group. But a new bill to give DACA recipients full legal status, sponsored by Republican Sens. Lindsey Graham and Jeff Flake and Democratic Sens. Richard Durbin and Chuck Schumer, would allow newly legalized Dreamers to have many run-ins with the law — arrests, charges, convictions — and still receive benefits. Schumer, the Democratic leader, is demanding quick passage.

Former President Barack Obama’s original 2012 executive action creating Deferred Action for Childhood Arrivals stipulated that to be eligible, recipients must have “not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offense, or otherwise pose a threat to national security or public safety.” When Obama announced the criteria for renewing DACA status in 2014, the standard was “have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.”

The Obama administration defined a “significant misdemeanor” as a crime with a maximum sentence of one year, or, regardless of length of sentence, “an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence.”

With the Dream Act of 2017, Graham, Flake, Durbin, and Schumer have adopted much of the existing Obama-era criteria about crime, but in a way that would allow Department of Homeland Security officials to be more generous with newly legalized DACA recipients.

The Dream Act would exclude anyone who has been convicted of “any offense under federal or state law, other than a state offense for which an essential element is the alien’s immigration status, that is punishable by a maximum term of imprisonment of more than one year; or three or more offenses under federal or state law, other than state offense for which an essential element is the alien’s immigration status, for which the alien was convicted on different dates for each of the three offenses and imprisoned for an aggregate of 90 days or more.”

The phrase “other than a state offense for which an essential element is the alien’s immigration status” could excuse a lot of criminal activity. “It would grant status to illegal aliens who have been convicted of felony ID fraud or other crimes that could be considered to be related to their immigration status,” noted Jessica Vaughan of the Center for Immigration Studies, which favors tighter restrictions on immigration. “You could say human smuggling, document fraud, benefits fraud, false claims to citizenship, illegal voting, and many other felonies have an essential element that involves immigration status.”

In addition, Graham, Flake, Durbin, and Schumer throw in the phrase “for which the alien was convicted on different dates for each of the three offenses” when referring to misdemeanor convictions. Many crimes involve multiple charges. The Dream Act of 2017 would require a young Dreamer to have committed offenses on not one, not two, but three separate occasions, and been convicted of all before he or she is ineligible for legalization.

The DACA controversy demonstrates the wages of the “progressive” conceit that our ingenious constitutional system is obsolete, that modern problems are so unprecedentedly complex they demand extra-constitutional solutions — such as a president’s usurping of congressional power, exactly the road to tyranny the Framers feared.

That is what President Obama did in presidentially legislating the Deferred Action on Childhood Arrivals program. Contrary to much of the public commentary, the defect in DACA is not that it was done in the form of an executive action (under the guise of a Department of Homeland Security memorandum). There is nothing wrong with an executive order that merely directs the lawful operations of the executive branch.

The problem is the substance of executive action. DACA is defective in two ways. First, it presumes to exercise legislative power by conferring positive legal benefits on a category of aliens (the “dreamers,” as concisely described in Yuval Levin’s Corner post). Second, it distorts the doctrine of prosecutorial discretion to rationalize this presidential legislating and to grant a de facto amnesty. These maneuvers violated core constitutional principles: separation of powers and the president’s duty to execute the laws faithfully.

There has never been a shred of honesty in the politics of DACA. Democrats have taken the constitutionally heretical position that a president must act if Congress “fails” to. They now claim that to vacate DACA would be a travesty, notwithstanding that the program is blatantly illegal and would be undone by the courts if President Trump does not withdraw it. For his part, candidate Trump loudly promised to repeal Obama’s lawless decree but, betraying the immigration-permissivist core that has always lurked beneath his restrictionist rhetoric, Trump has wrung his hands through the first eight months of his presidency. As for the Republican establishment, DACA is just another Obamacare: something that they were stridently against as long as their objections were futile, but that they never sincerely opposed and — now that they are accountable — cannot bring themselves to fight.

It is all so unnecessary.

Trump should do what he should have done his first day in office. He should declare the Obama-administration guidance null and void. Having sworn to preserve, protect, and defend the Constitution, he could explain that, while he would certainly execute any accommodations Congress enacts for “dreamers,” the president has no authority to confer positive legal benefits — such as work permits — on aliens. Trump could remind the public that President Obama himself publicly admitted he did not have the constitutional power to do what DACA does. Consequently, it makes sense for Trump to end the program now rather than continue on an unconstitutional course that the courts would inevitably invalidate. You don’t fix a problem by persisting in a lawless holding pattern.

The president could then explain how prosecutorial discretion legitimately functions, and how it would be exercised in favor of the dreamers.

In principle, prosecutorial discretion is a resource-allocation doctrine: The assets available for law-enforcement functions are finite, so the executive branch must prioritize — meaning serious violations get the most attention, while comparatively trivial violations often go unaddressed. Nevertheless, the president may not use prosecutorial discretion as a ruse to, in effect, repeal congressional statutes or decree new “laws.” To use some concrete examples, the federal government virtually never prosecutes possession of marijuana or fraud under a low dollar amount (say, $10,000). That does not mean such acts are no longer illegal; the government reserves the right to prosecute them in individual cases where peculiar circumstances warrant doing so. Still, absent highly unusual facts, these illegal acts are ignored so that sparse investigative resources can be targeted at more significant illegality.

Even in our divided politics, it should be a matter of consensus that the president of the United States can’t write laws on his own.

That’s what President Barack Obama did twice when he unilaterally granted amnesties to swaths of the illegal-immigrant population. The courts blocked one of these measures, known as DAPA, and President Donald Trump has now begun the process of ending the other, DACA, on a delayed, rolling basis.

In a country with a firmer commitment to its Constitution and the rule of law, there’d be robust argument over how to deal with the DACA recipients — so-called DREAMers who were brought here by their illegal-immigrant parents as children — but no question that Congress is the appropriate body for considering the matter, not the executive branch.

Instead, President Trump is getting roundly denounced by all his usual critics for inviting Congress to work its will. Obama came out of his brief retirement to join the pile-on. In a Facebook post, the former president said it’s wrong “to target these young people,” and called Trump’s act “cruel” and “contrary to our spirit, and to common sense.”

This is a lot of hyperventilating, even for a former president of the United States who must loathe his successor. Trump’s decision is a relatively modest way to roll back what is clearly an extralegal act.

The president goes out of his way to minimize disruption for current DACA recipients. The administration will stop accepting new applications for the program but will continue to consider two-year renewals for recipients whose status is expiring between now and March 5. This gives Congress a six-month window for its own solution before anyone’s status changes.

The proximate cause of the Trump decision was a threat by the attorney general of Texas and other states to bring a suit challenging the legality of DACA. Attention had to be paid, because Texas and other states successfully got the other Obama unilateral amnesty, DAPA, enjoined by the courts.

In his post, Obama waves off the legal challenge. He says DACA is based “on the well-established legal principle of prosecutorial discretion.” He maintained the exact same thing about DAPA, and that didn’t save it in the courts, including the Supreme Court.

True prosecutorial discretion involves a case-by-case determination by authorities. Obama’s executive amnesties were sweeping new dispensations designed to apply to broad categories of illegal immigrants. They didn’t involve simply deciding not to prioritize the deportation of the affected illegal immigrants, but the conferral of various positive benefits on them, most importantly work permits.

This is clearly a new legal system for these immigrants, and in fact, President Obama once slipped and told an audience, “I just took action to change the law.” Prior to DACA, Obama repeatedly said that he didn’t have the authority to implement his own amnesty absent congressional action — before doing just that.

The biggest labor story this Labor Day is the trouble that employers are having finding workers across the country. Friday’s report of a modest gain of only 156,000 new jobs in August doesn’t change that reality even though the jobless rate rose a tick to 4.4%

There are many reasons for the shortage, including drug use among the young, the disincentive to work due to easier disability, and the skills mismatch between what employers need and what kids learn in poor K-12 public schools. But the shortage will increase if the economy grows faster, so it’s good news that some in Congress have ideas to mitigate labor shortages in fields like construction and technology.

Senator Ron Johnson (R., Wis.) recently introduced a bill that would allow states to start visa programs for foreign guest workers that are currently managed by the federal government. The State-Sponsored Visa Pilot Program Act would allow for about 500,000 visas, with 5,000 for each state and the rest divvied up by population. The cap would be indexed to GDP growth. States would be free to decide which skill levels or industries would be eligible—and free not to participate in the program. Rep. Ken Buck (R., Colo.) is working on companion legislation.

Such visas might alleviate a shortage of farm hands in places like California’s Central Valley, which is leaving millions in crops to rot unharvested even as employers are raising wages and offering benefits. In Sen. Johnson’s Wisconsin, the unemployment rate is 3.2%, and manufacturers report thousands of openings. Wisconsin’s boat industry is hunting for mechanics; a state vocational school in Ashland reports that employers around the country are bidding for its graduates in marine mechanics.

The Johnson bill would permit workers to change employers, which would force companies to bid for workers. A worker who came from Canada or elsewhere would not be eligible for welfare such as food stamps. Also included: Restrictions for states whose workers are routinely discovered as working illegally outside the sponsor state.

Legislators in Colorado (jobless rate: 2.4%) and Utah (3.5%) have in past years passed measures to start state worker programs, as a Cato Institute brief on the bill points out, though the federal government has refused to grant legal clarity. The American Action Forum’s Jacqueline Varas reports that allowing state programs would create 900,000 to 1.2 million jobs—for American workers. Bringing in workers from abroad allows companies to grow and expand opportunities for U.S. citizens.

Another benefit would be political accountability. Voters could hold their governors and state legislators responsible for success or failure. The idea also concedes the reality that the labor market in Fort Wayne, Ind., differs from the one in Silicon Valley. States are better able to notice which industries need workers, and tailor the visa eligibility accordingly.

Congress has tied itself in knots for years over immigration because the Members insist on trying to move grand bills to settle every issue rather than discrete bills to address specific problems. The bills collapse of their own weight. Sen. Johnson’s idea would be a good start in addressing the urgent problem of America’s labor shortage.