Imagine being six years old and uprooted from the only place you’ve ever lived and taken north into a completely alien culture with people you don’t understand who speak with a different accent. Then, imagine being shuttled around from place to place as your father chases work. Imagine changing schools 13 times in the next 11 years, carrying a pejorative nickname with you everywhere you go. Finally, you turn 18 and are legally able to have some say over your destiny …
I lived that.
Of course, my experience was based on being uprooted from the Republic of Texas and taken north to Ohio at the behest of the United States Air Force and ping-ponged about as Dad got new assignments. Not every new school community readily welcomed us “military brats.” However, since my father was only a young Airman when we were in Texas, he had to rent our off-base housing in San Antonio (a one-bedroom cottage out back) from the nice Mexican gentleman who owned the nearby gas station. Sometimes he would loan Dad five bucks until payday and, once Dad got another stripe, we got to move up to the front cottage! Mr. Lyro became a lifelong family friend and member of our Christmas card list.
While our status was certainly legal, I feel a personal empathy and cultural appreciation for those at the center of our current controversy. Long solo car trips have afforded me plenty of time to work on this in my mind. Much as I previously sorted out the whole same-sex marriage issue in a prior column, I offer the following theses to move the “DACA” issue forward.
Back in the 1990s, when I was sometimes required to draft sections of Florida Statutes and the enacting Florida Administrative Code, I tried to follow some overarching principles. Bills should have a single issue, not be bundled into some omnibus that hides the question in a forest, so that it can be considered on its own merits. I also felt strongly that a “statement of legislative intent” should be included so as to not open the thing up to reinterpretation by later readers. It means what it says it means.
Thus, just as President Obama said many times that he did not have the authority to create the Deferred Action for Childhood Arrivals (although he then did), and just as President Trump exercised that same lack of executive authority to create an artificial expiration date, they were both right and wrong. What they were right about is that this is an issue squarely in the responsibility of Congress which should draft and pass a clean (no dangling amendments or non-germane tradeoffs) piece of legislation.
In addition to its Constitutional role to manage citizenship and immigration, the Federal government has a compelling interest to count noses via the Census every decade. I actually worked on the 2010 Census to develop ways to increase responses in Volusia County. At that time, we encountered concerns about locating and counting non-citizens since they would still be consumers of government services and therefore variables in the calculations of public budgets. Even back to the administration of Caesar Augustus (see Luke 2:1), this is a key function of public administration. Any solution must require some sort of accounting or the horribly overworked cliche’ can gets propelled soccer-style further down the pavement.
So, here are the key provisions of what I would find an acceptable plan that both respects the rule of law and also provides a pragmatic way to acknowledge the however many actual humans are here in this shadow state.
- This shall only be applied to those persons who entered the United States illegally before the age of 18 and further only applies to such time after they attained the age of 18. If someone was brought here before their age of legal responsibility, you can’t hold them accountable. It is parallel thinking to juvenile records being sealed by a court or needing some aggravating circumstance to charge a minor as an adult. All things being equal, treat children as children. However, …
- Once such persons reached the age of 18, they were able to make their own binding legal decisions. I could see some sort of exception if any affected persons could make a case that they did not know they were here illegally but the clock would at least start running from whatever point they became aware of their status. There is also a concept at play of “putative knowledge,” meaning a person “knew or should have known,” i.e. ignorance if the law is no excuse. This creates a window of responsibility for these “dreamers” after which they should have done something about it.
- When the argument is made that such persons are contributors to American society as workers, students, even military servicemembers, there had to have been some sort of administrative violation if the person had no valid Social Security Card, state ID, work permit, student visa, or other enabling government document. Let’s stipulate that those are administrative violations, not criminal charges. In the absence of outright forgery, paperwork issues can be sorted out. It would be like having an expired driver license on steroids but doable.
- It is necessary to provide a date certain by which any affected persons must bring their paperwork into compliance. Back in the 1990s, all Florida healthcare workers had to take a mandated HIV/AIDS awareness course by 31 December or they could not work on 1 January. I actually had to teach such a course before going out for New Year’s Eve because there were still a few workers at our hospital who had not gotten it done all year! No deadline, no compliance.
- Affected persons would need to “turn themselves in” and register and apply for normalization. Critical information would be providing the date at which they entered the United States and the date they turned 18. If such person does not have documents from the home country (and likely don’t), then a one-time sworn affidavit could suffice. After all, family Bibles are accepted as birth and marriage records in many jurisdictions.
- Fingerprints are collected and run just as they were multiple times during my career for various license, permits, jobs, and security clearances. (And I was born here!). The government has a compelling interest to know that there is no outstanding criminal record on an applicant, the previously mentioned administrative violations notwithstanding.
- Based on the number and degree of paperwork violations, an administrative fine could be calculated and levied. Depending on the number of years of noncompliance, this could be a large sum. Realistically, people who have been operating in the underground don’t have a fully-funded IRA that they can borrow against to pay these fines. So, how could anyone ever settle their account with the government?
- The applicant signs an agreement to have any future Federal income tax refunds applied against their outstanding balance of fines. Such charge-offs already take place on other Federal matters and there are other linked obligations such as non-registration with Selective Service making persons ineligible for Federal student financial aid programs. (Did you know that the Social Security Administration already can withhold benefits to persons with outstanding warrants?) This would be another parallel with existing ways of handling Federal issues so it should be seen as not creating some new legal standard for the DACA folks.
- With all of this in place, the applicant would gain legal resident status and would be able to renew that status if there are no new criminal violations. In short, step up and get your paperwork straight, behave right, and you get to stay.
- Once a person’s financial obligations are satisfied (enough potential tax refunds are set off against outstanding administrative fines … or just settled as there should be no penalty for an early payoff), that person could make formal application to become a naturalized citizen.
In keeping with my ethical requirement of single-issue legislation, this intentionally does not address the visa lottery, chain migration, or the dadgum “wall.” Each of those deserve its own proposal, debate, and up-or-down vote, again on its own merits of argument. However, this would provide a one-time opportunity to clarify this grey area, count and document all eligible affected persons, and then sunset the program. Too many laws stay on the books beyond their intended use (or have you never read all that funny stuff on the Internet about states where you can’t chew gum in church or bring livestock into a bar?)