THE DACA PROBLEM; I’LL MISS JUDGE RICHARD POSNER

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As we are told everyday in popular culture and by Congress, it’s dangerous to draw broad conclusions about a large class of people from the actions of a small subset. So why should we take it as a given that all young illegal immigrants brought here as minors by their parents are good? It might be heartless to toss them out of a country where they have spent most of their lives but that does not mean they are good people. It simply means we are a good country. But no country has open borders. We have not had open borders since 1921. We get to choose which immigrants we take. Ideally, we should have certain criteria we want in new arrivals: a high I.Q., a skill set enabling the immigrant to find work in our advanced economy, a commitment to our political principles (i.e., no Sharia law), and no indication of substance abuse or a criminal record. Some of these factors are discussed with regard to DACA and the “dreamers” but not all. For example, what if the young person dropped out of school? Or has a low I.Q.? Or refuses to learn English?

It seems from media reports that most of those who signed up for the DACA program, finished high school, are working, and are literate. I do not know if any criminal background checks were performed or fingerprints were checked against FBI databases, which is customary when people apply for visas. If they were, then these DACA recipients are very sympathetic candidates for being given legal status. However, I would never allow them to become citizens. They entered this country illegally, and giving them citizenship rewards their parents’ lawlessness.

Republicans should refuse to pass a DACA bill unless they get something meaningful on immigration, such as mandatory e-verify for all employers (though the system is flawed because it puts employers, the beneficiaries of illegal labor, in charge of enforcement), the RAISE Act and/or the end of birthright citizenship. Birthright citizenship has not been tested in the Supreme Court since 1898. It’s time to get back there. Judge Richard Posner wrote it is silly and can be abolished by statute.

As to the esteemed Judge who retired last week, I’ll really miss him. I devoured his opinions and his excellent, terse prose. He brought his cases to life and challenged the sloppy, stale way most lawyers and judges express themselves. He was no friend of civil RICO, but in his last RICO decision in 2011 applied statistics to the case to bring it back from an early death. It changed the causation analysis in the Seventh Circuit. It was good for good RICO cases.

He began his career as a Judge in 1981, when the judiciary was pro-civil litigation. It moved strongly in the other way in the next 30 years. But then he believed the pendulum had swung too far in favor of markets and corporations. He had the honesty to admit he may have been wrong. I’m not aware of any other judge who has done so while he was on the bench. He was singular in his impact and candor.