Some thoughts on DACA

The current case before the Supreme Court is not about the merits of DACA, no matter how much the talking heads want to make it so. It is about process. We have been dealing with abuse of executive power since Bush used 9/11 to grab it, and we have seen the next two presidents abuse it. This is bad for a system that is designed to force compromise. You should read this with the idea that I think that granting some form of amnesty, not just for DACA recipients, but for people who have been living and working here for a long time without getting in trouble. I have been professionally involved in supporting immigration reform since 2001, and at least for agriculture, the proposals that both the industry and labor advocates agree on have been the same since that time. But how we do things is just as important, if not more so, than the substance of what we do. Process matters, and when we disregard it we get unintended consequences.

The President is not allowed to make laws - that is the job of Congress. Faced with an obstructionist Republican Congress, Obama allowed his frustrations to get the better of him and created DACA. DACA rests on the legal foundation of “prosecutorial discretion”- the idea that a prosecutor gets to decide who to prosecute, and can exercise discretion to decline to prosecute even the guilty. Obama himself acknowledged at the time that this was shaky legal ground for the issuance of an entirely new category of visa, although he clearly could choose not to seek the removal of illegal aliens who fit this category. Issuing them visas was a step that was probably unlawful. However, as I will explain, it really doesn’t matter if he acted in the scope of his authority when issuing these visas.

The reason is that DACA loses either way. Either President Obama exceeded the scope of his authority and these visas were never valid (the worst outcome for DACA recipients), or he could he could exercise his discretion and issue them. That is the harder issue for the Court. The problem is that there is an easy issue for the Court. If President Obama could exercise discretion to allow these visas, then his successor can exercise the discretion to refuse to renew what are temporary, two year visas. If a President has discretion to create a new visa program, then a subsequent President has discretion to end that program. Otherwise, the President has the power to rewrite the law in a manner that creates permanent legislative action, which is clearly the sole purview of Congress. This is why Trump is likely to win the DACA case.


It is also a good outcome for our system. Process matters, even on an issue as painful as this one. We have not seen meaningful immigration reform in this country because both parties gain politically from opposing and extreme positions that do not lead to legislative compromise. I spoke to a Republican Senator not long ago who told me that they could not get immigration reform done while Trump had a Republican Congress because too many Republicans insisted on no amnesty provisions whatsoever, an extreme position that has been enabled by the harsh rhetoric of the Trump administration. However, he told me that you won’t see it get anywhere with a Democratic Congress, because they have too many party members who want to tie reform to automatic citizenship and a $15 per hour minimum wage. This has been enabled by actions like DACA, which release the “pressure valve” on a subject like immigration so that no one is forced to compromise.

Here is an example. Trump announced early in his Presidency that he would sign a bill that gave a path to citizenship to a group broader than DACA recipients - a path to citizenship for almost 1.5 million people. This was a substantial offer, but he demanded funding for a border wall in exchange. Democrats were free to reject this because of their desire to prevent Trump from crowing about getting his wall because DACA recipients already had visas. In the absence of DACA Congress would have been forced to act, and it is likely that some sort of compromise would have been reached. Trump would have gotten some money for his wall, and DACA recipients would have gotten the legislative relief that they need. But with the visas there, there was no need for a practical compromise, and Congress was off the hook for inaction.

In the absence of DACA, public pressure would have continued to grow on Congress (DACA is widely popular), and we would be a lot closer to immigration reform than ever. The wall is a stupid idea, but it isn’t that harmful; we have spent stupid money on stupid things before. But the opportunity for a legislative fix for over a million people is one that should not be ignored, and certainly should not be ignored because of an eye to the 2020 campaign. When the President and the courts refrain from legislating, Congress is forced to act. But for a long time now, both the executive and judicial branches have taken it upon themselves to make law, and that has led to and promoted the Congressional gridlock that frustrated Obama, and now frustrates Trump. No matter where you stand on the policy spectrum, this is a bad outcome. Even though I support immigration reform, I think DACA is one of the worst ideas ever - not because of what it does, but because of how it was put into place. It would be good for the long term health of the nation if this fight goes to Trump. By the way, most DACA recipients are eligible for cancellation of removal if removal is sought, and are more likely than ever to get it in what have become insanely overcrowded immigration courts. There is also no room for them in detention, and they are eligible under current standards for OR while awaiting removal proceedings.

So I hope we get real reform, but I also hope that the Court acts to stop legislation by executive fiat.  Those two ideas are not incompatible. 

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