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  • Max Stearns

Taking the Law’s Name in Vain

Every now and again someone asserts something so offensive that it risks distracting from a deeper and more problematic point. This happened in today’s press briefing.

In a now viral exchange, CNN Correspondent Jim Acosta pressed Sarah Huckabee Sanders on Attorney General Jeff Sessions’s claim that the Bible condones separating infants and toddlers from their parents seeking asylum at the southern border. Sanders declined to identify specific biblical passages supporting Sessions, but she defended his assertion on two grounds. First, she said the Bible does, at several points, compel compliance with the law. And, second, the Trump administration’s separation policy is compelled by laws on the books for a decade or more, despite the failure of prior administrations to take their commitment to the rule of law seriously. I’m not qualified to take on Sander’s biblical claim, but I’m quite certain she is taking law’s name in vain.

As part of today’s heated exchange, Sanders blamed the Democrats for repeatedly failing to close the loopholes in immigration law, requiring the Trump administration to enforce its policy of splitting families seeking entry apart because it’s the law. This latter, more problematic, point risks getting lost. The offensive bible-lesson decoy distracts from Sanders’s deeper messaging: unless the Democrats join in accommodating Trump’s dire immigration policies, any resulting enforcement tactics, no matter how offensive, are the Democrats' fault. The Trump administration will take the most extreme, never before supported, approach, including splitting families, unless the Democrats acquiesce to Trump’s wishes on immigration. That’s not the law; it’s extortion. And it’s more offensive than any disingenuous bible lesson.

I’ve been teaching law for a good long while. Here’s something that most law students grasp by the end of their first year, and more often earlier than that. Law school doesn’t teach “the law.” There’s a simple reason: for any legal question that matters, the law isn’t about looking up an answer; it’s about understanding the process of reasoning, synthesizing, and argumentation. And most often, this requires understanding, and attempting to reconcile, legal sources pointing in competing directions.

I don’t mean to imply that the law is always indeterminate, that all arguments are of equal quality, or that accepted positions even on the most contentious matters never emerge. But it is important to understand that today’s settled doctrines were yesteryear’s contentious battle grounds. If the eradication of Jim Crow is “the law,” why did that take decades to accomplish? If equal rights for women is “the law,” why were the battles so hard fought? There are countless other examples, some resting on the Constitution, some resting on statutes, and some developed through common law rulemaking. Even federal agencies change their understandings of statutes they apply, often as a result of the differing perspectives of those who head them. The Supreme Court has said that even if it disagrees with the agency's interpretation of an ambiguous statutory provision, provided the agency construction is reasonable, its word, not that of the courts, is the law. So much for calling balls and strikes.

The law doesn’t compel the most aggressive, or the most accommodating, immigration policy. Enforcement discretion is also the law. Enforcement policy, like the staffing of agencies or the appointment of cabinet heads, is political, not legal. And yes, elections matter. Everyone paying attention knew that Donald Trump would take a far harder stance on immigration than Hillary Clinton. He ran on it. But I suspect that few anticipated he would condone separating babies and toddlers from their parents to deter immigrants.

It was not lawless to take a more relaxed approach on immigration policy. And it isn’t lawless to take a hard-line view, perhaps even if that means splitting families apart. But it is cruel. And it is egregious to then blame as the basis for doing the Democrats for not embracing the Trump administration’s immigration policies. That’s not the law; it’s extortion, not unlike threatening to prosecute a child if a parent fails to plead guilty to a crime. Treating this as a bible lesson is indeed offensive. But not nearly as offensive as blaming splitting up families on the Democrats who are fighting it and who remain unwilling to embrace policies they despise.

I welcome your comments.

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