“If you want to keep DACA, here’s a thought,” one conservative tweeter noted wryly in response to the torrent of outrage that met President Trump’s decision to scrap the program, “make a proposal that opponents are willing to compromise on. That’s how politics used to work.”
There is, as Yuval Levin notes, a “huge opening” for such a compromise. Some Congressional Republicans would be willing to codify DACA (which shields unauthorized immigrants who came here as children from deportation) if it was accompanied by certain restrictionist measures. And some Democrats might be willing to vote for more border security or a reduction in less-skilled immigration if it meant that “Dreamers” were given real security.
But anyone who has been watching American politics for the past several years has to be skeptical that any deal along these lines will actually transpire. Because however “politics used to work,” they don’t work that way anymore. Instead of a set of public-spirited representatives bargaining for partial victories, we are now watching maximalist factional leaders performing ideological purity rituals to increase their status within their tribes. The coming fight threatens to damage U.S. institutions even further.
The DACA chaos—from its unilateral inception under President Obama to its twilight without any fix in sight under Trump—isn’t just about immigration. It points to a growing disturbance within liberal politics itself. Understanding the roots of that disturbance can help prevent it from spreading.
“The historic contribution of liberalism,” wrote Daniel Bell in 1955, “was to separate the law from morality.”
In other words, just because something seems morally right doesn’t mean it should be reflected in the law. And just because something is the law doesn’t mean that it is morally right.
This insight is relatively new. It distinguishes modern republics from older societies where morality and the law were the same thing. “In older Catholic societies ruled by the doctrine of ‘two swords,’” Bell notes, “the state was the secular arm of the Church, and enforced in civil life the moral decrees of the Church. This was possible, in political theory, if not in practice, because the society was homogenous and everyone accepted the same religious values.”
Enlightenment thinkers, surveying the horrors of 16th-century religious warfare, saw that private morality had to be divorced from public law to keep the peace. For diverse societies to cohere, people needed to be able to hold a range of opinions about what was moral. A moral view could only be reflected in the law if it was approved in an agreed-upon process of collective compromise (like passing legislation). By the same token, the fact that something is written in the law doesn’t mean it carries moral force; bad laws can and should be amended.
The DACA crisis arises out of Americans’ deteriorating ability to separate their own moral views from the law—or to separate the outcomes they desire from the process required to achieve it.
This failure is particularly evident on the Democratic side. President Obama resisted DACA-like action for years, noting that he was “president of the United States, not emperor of the United States,” and that executive amnesty exceeded his constitutional authority. But Obama’s liberal base, which did not distinguish between its own views of what was right and the legal procedure that could bring it about, forced his hand. Because deporting unauthorized immigrants who arrived in the United States as children was immoral, and because morality and law are one and the same (to the pre-liberal mind), the administration was justified in unilaterally nullifying the law that provided for those deportations.
DACA proponents today are exhibiting a similar pathology as the Trump Administration scraps the program and calls on Congress to legislate a replacement. As our conservative tweeter from the first paragraph indicated, the bulk of liberal energies are focused on condemning the Administration and threatening lawsuits and protests. All of those courses of action are reasonable, but it remains to be seen whether they will be accompanied by the kind of procedural politics and compromise that will be necessary to actually protect Dreamers, or if the Democrats’ moral indignation has consumed their lawmaking strategy. As Jay Cost wrote, “In a constitutional republic, the ‘what’ of policy isn’t the only important thing. The ‘how’ is, too.” When these can no longer be conceived of as separate questions, liberal institutions begin to die.
The populist right wing of the Republican Party—people like Congressman Steve King, who ridicules Dreamers, who will fight any sort of DACA compromise tooth and nail, and whose intransigence encouraged President Obama’s undemocratic overreach—also tend to conflate law and morality. Because Dreamers entered the United States illegally, the hard Right argues, they did something immoral or have lesser status themselves. In this view, legal status perfectly corresponds with moral status; it’s not possible for someone to be in violation of the law but personally blameless, even if he entered the U.S. as a child. Law and morality are melted together, as in pre-Enlightenment religious monarchies. So the most reactionary anti-immigrant positions can also arise out of a rejection of the law-morality differentiation that is foundational to modern politics.
The blogger Scott Alexander has written that “liberalism is a technology for preventing civil war,” in that it creates incentives for people with wildly divergent moral views to compromise with one another through representative institutions. There are plenty of signs that our current technology is not functioning optimally—that it is overloaded, or outdated, or threatened by new kinds of viruses. The crucial indicator of this dysfunction is the collapsing firewall between morality and law. This is evident in DACA, where progressives increasingly think that their own moral vision is the law, process be damned, and reactionaries are so rigidly legalistic in their moral reasoning that they cannot empathize or compromise. But it’s also evident in debates over free speech, religion, and identity politics, where pretenses of neutrality are fading and the attitude on both sides seems to increasingly be “for me but not for thee.”
The coming DACA negotiations will be a major stress test for America’s beleaguered anti-civil war technology. Hopefully our polarized Congress and volatile President can produce a deal that preserves protection for Dreamers while addressing the serious concerns of the restrictionists. Getting there would require politics—the art of peaceful compromise between competing constituencies living under a single government. That process is frustrating and slow and imperfect. But it’s preferable to what would be unleashed if we let politics end.
