It may not look like it now, but by announcing an end to the Deferred Action for Childhood Arrivals program, also known as DACA, president Trump may actually have done its recipients a favor.
DACA was a popular program, with many people denouncing the president for announcing his intentions to end it. DACA allowed young people, who were not born in the United States but brought here illegally by their parents, to come out of the shadows and become productive members of society without fear of deportation.
But relying on the continuation of DACA was bad policy.
First, DACA was of questionable constitutionality at best. DACA was not created or even authorized by legislation. Instead, President Obama took a small piece of executive authority meant to address situations where the application of immigration law was harsh on an ad hoc basis, and turned it into a huge program. DACA is based on presidential authority to grant deferred action. This is nothing more than a promise not to seek the removal of a person who is otherwise in violation of immigration law. It is not directly authorized by Congress. Rather, it stems from the theory that the person who is enforcing the law has the discretion to choose not to come down with the full force of the law when there is a violation. Think of a police officer who witnesses a minor crime, but chooses not to arrest a person.
The problem is that by taking this small piece of executive discretion and creating a full program out of it, affecting hundreds of thousands of people, President Obama infringed on the role of the legislative branch. That is, he essentially created law without Congress passing legislation. This can be seen as a violation of separation of powers.
Several states saw it that way. Citing the extra expenditures the states believed they were incurring on people who were present in the country illegally, these states threatened to sue the federal government to end DACA. These states had been successful in shutting down a similar program that granted deferred action to foreign born parents of U.S. citizens and permanent residents by filing suit in the Fifth Circuit. If the states had filed a lawsuit over DACA, there was a real danger that the program could have been ended by the courts and declared unconstitutional.
Second, DACA was a very weak solution to the problem. DACA did not grant the young people who applied for it a legal status. That is, the program did not give the recipients a legal right to stay in the United States. It only gave the recipients a promise not to seek their removal. As a creature of executive discretion, this meant that the promise could be broken by the same executive who granted it. DACA did not lead to permanent residency. It did not lead to citizenship. All DACA did was to keep the young people who applied for it in a holding pattern. Going back to the separation of powers, this is because the president does not have the authority to create legal status, only to ignore the consequences when a person has violated the law.
Third, the continuation of DACA permitted Congress to remain lazy. While DACA was in place, the young people brought to the country illegally but raised as Americans were not going to be deported. They were given legal authority to work and pay taxes. Even if there was no path to citizenship, there was no immediate pressure on Congress. Why, then, should Congress act? Just pretend that this non-solution was working and let things continue as is.
Ending DACA is now forcing the issue with Congress. If Congress believes these young people are deserving of relief, Congress must now pass real legislation to protect them. Presumably, this legislation will include a true legal status instead of a mere promise not to deport. Perhaps Congress will even create a method for those who merit it to earn true permanent residency and eventual citizenship. Then, these young people who were brought up to be Americans will truly become Americans.
Finally, DACA has made these young people more sympathetic. It is easy to say enforcement only and illegals deserve to be sent back, when you haven't met a hard working and moral undocumented individual. But DACA allowed these young people to work openly. It allowed them to win the respect of professors, fellow students, bosses and co-workers alike. When you met a person just making an honest living because of DACA, it was hard not to like them.
And that sympathy will turn into political pressure. People don't want to see their neighbors, co-workers, friends deported. Businesses, including industrial Giants, will not want to see valued employees suddenly unable to work. Congress will be under pressure to create a real legislative fix.
The termination of DACA may yet result in a better future for young people brought to this country illegally by their parents. If Congress acts, it could result in a more secure legal status and a path to citizenship. If Congress doesn't act, it will give the American public yet one more thing to add to the list of congressional failures and reasons to vote members out of office.
William J. Kovatch, Jr.
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