Home schoolers around the world are rejoicing in the unexpected news, after some hair-raising twists and turns to the case, that the Romeike family will not be deported. Here, in brief, is what has happened:
As followers of the case know, the home schooling family from Germany had come to America and had applied for asylum. (You know, wanting to be here legally and do things in a legal and official way.) At first, an asylum judge ruled that they qualified for asylum because they were being persecuted in Germany for being home schoolers. The Obama administration spent money appealing the case, arguing that they did not qualify for asylum. I wrote about the case before here, pointing out (what is sometimes overlooked) that the asylum laws concerning "persecution for group membership" apparently say that if you "should" not have to change a particular trait or behavior, this counts as an "immutable" trait or behavior, which opens the door to asylum for people such as the Romeikes. A higher asylum court sided with the administration and overturned the lower court's ruling. The case was appealed to the Supreme Court, and just a few days ago, SCOTUS refused to hear the case, thus leaving in place the ruling against the Romeikes.
Things looked grim, but within a short time after the ruling, the Romeikes' lawyer received a phone call from the DHS stating that the family had been given "indefinite deferred status" and therefore would not be deported.
So why am I only partly happy?
Well, I'm happy for the Romeikes, that they won't be sent back to Germany to have their children taken away as has happened to the Dudek family. I'm even happy that they will not have to try to find some other country to take them in, now that they have succeeded in starting a life here in America.
But to my mind, there is something lawless and insulting about the way that the administration has handled this case. Here's the pattern I see: The Obama administration was determined that persecution for home schooling not be regarded as grounds for asylum. To establish that precedent and send that message, they were willing to spend money, time, and effort.
Having frustrated the Romeike family's attempt to be in the United States in an unambiguously legal way, the Obama administration then behaves like the powerful emperors of old, giving the merciful "thumbs up" sign to the otherwise condemned prisoner. In this case, the thumbs up sign is legally questionable. "Indefinite deferred status" is a creation of the executive branch that appears (from the research I've been able to do so far) to lie outside of the purview of Congress and to have no basis in law. (I will be happy to be corrected in comments by readers who know something better about "deferred status" for immigration.) It is essentially telling illegal immigrants that they won't be deported "just because." This is an insult to the Romeikes, who have attempted scrupulously to follow the rules from their first moment of setting foot on U.S. soil. It also places both them and their children at the mercy of later administrations or indeed of a later decision by this administration to be more hawkish in the enforcement of immigration law. That, in turn, must make it difficult for either them or their eight (!) children to make plans for their future lives. Will they have the opportunity to become U.S. citizens? Where will they be living? What jobs will they be able to hold legally? Will they be targeted if, for example, they later engage in political speech or join a political group that the government disapproves of? Will their children be under special government scrutiny all their lives? It puts them, through no fault of their own, in a legal grey area currently occupied by immigration scofflaws. It seems to me very deliberately to send the following message: You respectable home schoolers who came here openly to avoid persecution are no different from any other illegal immigrants.
Let's get one thing straight: That is this administration's preferred modus operandi. The Obama administration prefers to govern lawlessly. Rather than overturning Obamacare because it's turned out to be a disaster, and rather than enforce it and take the political consequences, Obama prefers lawlessly to delay its implementation for blatantly partisan reasons. This administration does not believe in a government of laws rather than men. The case-by-case basis, making exceptions "just because," and keeping people on tenterhooks as to what is actually going to happen to them and what the law actually is, is all the breath of life to this administration. Indeed, this administration is a walking, breathing illustration of just why the phrase "a government of laws and not of men" was coined and what is so important about it. A "legal" situation more ripe for corruption and abuse is difficult to imagine.
I'm happy for the Romeikes--for now. Where they will be in ten years remains to be seen. I would like to think that a Republican administration down the line would find a way to regularize their position, which is what they wanted all along, but I'm not holding my breath.
I'm not happy for America, which is sliding further and further into a condition in which "law" is just a word denoting something distinctly postmodern--a prediction about what the executive will do.