Border Wall, DACA, David Harsanyi, Deferred Action on Childhood Arrivals, Deportation, Dream Act, Executive Overreach, Executive Power, Ilya Somin, Immigration Enforcement, Immigration reform, Michael Ramsey, Path to Citizenship, Prosecutorial Discretion, The Federalist, The Originalism Blog, The Volokh Conspiracy, Zachary Price
Two major issues weigh on critics and supporters of President Trump’s rescission of DACA, President Obama’s 2012 executive order establishing the Deferred Action on Childhood Arrivals program. First is the treatment of individuals who entered the U.S. illegally prior to mid-2007 at less than 16 years of age (and who were 30 or younger in 2012). Under Trump’s new order, these individuals would be subject to deportation in March 2018 or later, depending on their remaining DACA eligibility and the status of any renewal application already filed by then.
As an isolated question, draconian treatment of so-called “Dreamers” (taken from the “Dream Act”, which never made it through Congress) is difficult to justify. These individuals did not arrive here by choice or through any fault of their own, and the vast majority are now productive members of society. The problem, however, is the usual argument against amnesty: it creates an incentive for would-be immigrants to circumvent the legal immigration process in the hope of later forgiveness. If children of illegals are subject to lenient treatment once in the U.S., it probably magnifies that incentive. While some take a hard line with respect to deporting today’s Dreamers, many critics of DACA are strongly sympathetic to their plight.
The second issue defines another basis for opposition to DACA: the questionable legality of Obama’s original order. Obama issued another executive order in 2014 that essentially expanded DACA. That later order, already rescinded by Trump in June, was likely to be overturned by the Supreme Court. This article quotes from the majority opinion of the U.S. Fifth Circuit Court of Appeals:
“The administration’s interpretation of the Immigration and Naturalization Act, [5th Circuit Judge] Smith wrote, would effectively vest the Secretary of Homeland Security with the power ‘to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA’s intricate system of immigration classifications and employment eligibility.’ In other words, Smith wrote, ‘the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.’“
The key here is the clause “making them newly eligible for a host of federal and state benefits” without proper legislative authorization. In other words, Obama exceeded his authority. The original DACA order suffers from the same defect as the extension, and it was likely to be challenged as well. However, Ilya Somin has defended DACA as a matter of “prosecutorial discretion”, which was Obama’s original rationale for not enforcing immigration law for Dreamers. (But there is suspicion that the likelihood of adding to Democrat voter rolls appealed to Obama.) Enforcement against the children of illegal immigrants, Somin contends, is simply bad policy of the sort routinely avoided by prosecutors. In 2013, Zachary Price addressed this defense of DACA, including the application of earlier statutes specifically allowing discretion in immigration enforcement (also see this post by Michael Ramsey):
“The immigration [DACA] policy, in contrast, provides a more definite and specific guarantee of non-enforcement to a broad category of undocumented immigrants who fall squarely within the scope of removal statutes. … It’s worth noting (as some folks have helpfully pointed out to me) that the Obama Administration has maintained vigorous enforcement with respect to other groups of undocumented immigrants. But DACA goes beyond simply turning a blind eye to their unlawful presence in the country. It effectively grants a form of lawful status not contemplated by the applicable statutes through an exercise of prosecutorial discretion.
It’s true that there is a history to the practice of deferred action. Although this form of relief originated in executive practice, it’s now mentioned in several statutes, so to some degree at least Congress may have ratified it. … Yet the practice (as I understand it) originated as a form of case-by-case humanitarian relief. While immigration officials have used it categorically a few times in the past (for instance, to grant relief to immigrant students affected by Hurricane Katrina), I’m not aware of it ever being used for as broad and significant a group of immigrants as in the DACA program. So I think it’s hard to claim that there’s been even an implicit ratification of the practice sufficient to support the DACA program.“
Legislative action — a new attempt at some kind of Dream Act — could resolve the dilemma faced by Dreamers and their defenders while avoiding the legal objections to unrestrained executive authority. It’s likely that Trump is willing to exchange a continuation of the DACA regime, or even complete amnesty for Dreamers, to achieve other priorities, such as funding for his ballyhooed border wall. One could accuse Trump of using the Dreamers as pawns — why else would he have agreed to a grace period of six months? And why did he say, subsequently, that he would “revisit DACA” if Congress failed to act? That might give him some leverage with those who oppose DACA on the legal grounds discussed above, but it might undermine his ability to cut a deal for the wall or any other priority with Democrats.
David Harsanyi writes in The Federalist that “Rescinding DACA Is the Right Thing To Do“:
“If there’s one thing that exemplified Obama’s administration, it was its embrace of executive unilateralism. No administration in memory was stopped more often by courts on this front—often by unanimous Supreme Court decisions. … The Constitution makes no allowance for the president to write law ‘if Congress doesn’t act.’“
Somin notes that rescinding DACA, and even passing a law in this case, will do nothing to prevent this and future presidents from exercising excessive authority. That’s certainly true, but rectifying a case in which that authority was exceeded, along with recognition of the constitutional limits on executive authority, is worthwhile.
Congress should pass legislation offering relief to the Dreamers. In a best case scenario, new legislation would provide them with a clear path to citizenship, and it would also reform existing immigration law to allow for greater flows of immigrants through the legal process. Those provisions might come at the cost of building a wall, as well as funds for tougher immigration enforcement. And Trump has made merit-based criteria for issuing green cards and accepting immigrants a priority. That’s fine as long as: 1) “merit” is defined partly by economic needs, such as low-skilled farm labor; and 2) there is some sort of navigable process for refugees.
While the prospect of allowing Dreamers to be used as political pawns might be repugnant, the end result could be worthwhile. And we shouldn’t forget that some of those Dreamers, as children, were probably used as pawns by the very parents who brought them here.