The ends don’t justify the means

It is all too easy in governing to fall prey to consequentialism.  When the end goal is just, right, or laudable,  the pernicious argument that the ends justify the means can lead even the best legislators or executives into temptation.  If the end goal is righteous enough, few elected leaders can withstand the flawed reasoning that it doesn’t matter how you make that goal happen.

This philosophy has grown like a particularly noxious and robust weed in Washington, and like an invasive species, it has slithered its way down I-95 to take up residence in Richmond.

The cause this time?  In-state tuition for the children of illegal immigrants.

Attorney General Mark Herring’s announcement today that the Commonwealth would allow those kids – often referred to as DREAMers –  to attend Virginia colleges at the cheaper in-state rate is a perfect example of where an elected official has allowed the siren song of a consequentalist argument to guide his actions while ignoring how damaging those actions are.  While Mr. Herring’s goal is laudable, what he did today is yet another blow to our republican form of government.  It will increase partisan cynicism, it undermines faith in the elections process, and damages some of the most fundamental concepts upon which our governments are based.

To paraphrase Chief Justice Marshall, it is emphatically not the province and duty of the executive branch to say what the law is.  Nor is it the role of the Attorney General to implement a policy that the General Assembly has chosen not to implement.  Yet that’s exactly what he chose to do today. It does not and should not matter that his cause is just.  Doing the wrong thing for the right reasons is no more virtuous than doing the right thing for the wrong reasons.  There is a more important concept at stake here.  

To be clear, I fully support the idea that those Virginians who were brought here illegally as children should not be punished for the sins of their fathers. Nor should they be treated like they’re criminals, either.  That’s why I supported the DREAM Act at the Federal level, and why I supported SB 249 in the Senate.  It wasn’t their fault what their parents did, and if they’ve attended Virginia schools and have otherwise qualified as Virginia residents, I think those kids should have the same privilege of lower tuition mine will have if he chooses to go to college here in Virginia.  But despite how fundamentally fair SB 249 is, it didn’t pass.  It didn’t even make it out of committee.

Every legislative session, thousands of good bills that deserve to be passed and enacted into law die in Committee.  The best of them come back year after year, and are eventually enacted into law.  That’s how our process is designed to work.  It may be slow, but it is designed to build consensus and to ensure that the laws enacted are truly the will of the people.  The best lawmakers are able to find ways to ensure that those laws do get passed and even when their bills fail, they rarely take that failure and walk away, never to try again.  At the same time, it’s important that if those laws fail, the will of the legislature should stand.  If the people disagree with what the legislature has done, the proper recourse is the ballot box, not a letter from the Attorney General, or an Executive Order from the President.  The will of the legislature is, after all, the will of the people as expressed by their elected representatives.  Even when it’s wrong, misguided, or flies in the face of common sense or common decency.  

It would be different if this issue dealt with a fundamental right, like voting or even marriage.  It doesn’t.  There is no fundamental right to cheaper college tuition.  This is a question of privilege, not one of right, and thus should be fought over, debated, and decided by the legislature.

What the Attorney General did today stood our system of government on its head.  The General Assembly said no, but he said yes, essentially daring them to overrule him.  This is all inherently dangerous to our system of ordered liberty.  When the executive branch chooses to resort to unilateral actions, especially actions that are in direct contravention to the will of the legislature, it is skating on very, very thin constitutional ice.  Taking this kind of a short cut undermines our system of government and makes a mockery of the concept of separation of powers and free elections. Why bother electing representatives to the General Assembly when the executive branch can simply override their decisions at will?

It’s also not fair to the DREAMers.  Those kids deserve to see legislation, passed by the General Assembly and signed by the Governor, giving them in-state tuition.  They deserve to see their arguments fought for by legislators willing to do what’s right, even if it may not be popular, and they deserve to have the chance to convince all of Virginia that this is the right thing to do.  By circumventing that process and taking the easy way out, Attorney General Herring is treating them like pawns in a tawdry political game, not like people.  They deserve the respect and dignity of seeing their argument prevail in the legislature, not just used as a gimmick to generate some headlines.  And if this interpretation gets overturned by the courts, which may very well happen, those kids are worse off than they were before, because the issue is now going to be heavily partisan, too. 

It’s not right when the President uses Executive Orders to thwart the will of Congress.  It’s not right when the Attorney General redefines words to thwart the will of the General Assembly.

No matter how fair and necessary those ends may be, the ends do not justify the means.

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