Obama's original sin on DACA
Donald Trump ran for the presidency with a get-tough agenda on immigration and pledges to reverse Barack Obama's executive orders. So really, the only surprises in the Trump administration's Tuesday announcement to end the Deferred Action for Childhood Arrivals (DACA) program are that it took this long for Trump to get around to it, and that the president extended the program for another six months.
DACA exists because Obama got tired of negotiating with Congress on immigration, especially on the DREAM Act, which would have exempted school-age illegal immigrants from deportation. After having insisted to his supporters throughout most of his first term (on at least 25 occasions) that he didn't have the authority to change the law by executive order, Obama did just that in June 2012. In doing so, Obama gambled that any future successors would not want to face the political headache of reversing his EO — a gamble that clearly did not pay off.
Both Obama and his former Attorney General Eric Holder objected to President Trump's reversal and Attorney General Jeff Sessions' characterization of DACA as unconstitutional. "The action taken today isn't required legally," Obama objected from his Facebook platform. DACA, he insisted, involved only the use of "the well-established legal principle of prosecutorial discretion."
Holder, in an op-ed published in The Washington Post, made the same prosecutorial-discretion argument. "Rather than grant legal status," Holder writes, "DACA simply deferred enforcement action against immigrants who met certain qualifications and permitted them to work lawfully in the meantime." Discretion and deferred action, Holder argues, are practices that have "been formally recognized as within the executive branch's authority since the Reagan administration."
There are two problems with this argument, both of which have led to a number of court challenges to DACA and its partner program DAPA, which covered the parents of DACA recipients. The first is that the authority for prosecutorial discretion and deferrals had been used primarily on an individual basis rather than for a broad class of hundreds of thousands of potential defendants. That leads to the second problem, which is that the executive branch is supposed to enforce the laws passed by Congress, not just those they like.
Even Sen. Dianne Feinstein (D-Calif.) conceded that DACA was vulnerable in a legal as well as political sense. NBC's Chuck Todd challenged Feinstein on the program's legality, and she noted that 10 state attorneys general had prepared lawsuits against the program. "Your answer indicates that it's on shaky legal ground," Todd said at one point, to which Feinstein replied, "It is. That's why we need to pass a law."
With Trump's action, the incentives are now in place to have Congress address the issue of children brought illegally into the country by their parents. But this highlights a danger for Trump, too.
Remember that Obama had another four-plus years to replace DACA with a properly passed law that ended prosecutions for those who qualify for DACA. One can argue, of course, that Obama couldn't have gotten a deal with a Republican-controlled Congress, which may very well be true. Both sides took absolutist positions at times on immigration and most other issues. But the Obama administration also assumed that a Democrat would succeed Obama (as did many), and that the need for compromise on this point simply didn't exist.
At least so far, the 115th Congress has not produced much evidence for increased appetites for compromise. Senate Democrats have blocked many of Trump's executive branch nominees, and have convinced themselves that obstructionism will produce electoral success. It's hard to blame them — it worked for Republicans for several years.
Democratic leaders Chuck Schumer and Nancy Pelosi have insisted on passage of the DREAM Act alone as the response to Trump's executive action. That's a non-starter for Republicans, as the bill includes a path to citizenship that would expand with "chain migration" to entire families regardless of lawful status. It's the same type of absolutist position that will all but guarantee that both sides remain stuck on the issue.
Republican Sen. Tom Cotton (Ark.) suggested a compromise in adding a form of DACA to the RAISE Act currently under consideration. RAISE has come under fire for reducing legal immigration levels, but also proposes to end chain migration and removes the incentives for future illegal entry. It's a step in the right direction for engagement, but highly unlikely to succeed. Progressives will likely balk at the immigration caps, and conservatives at the legalization of the so-called DREAMers.
The most likely, or perhaps least unlikely, approach comes from Rep. Mike Coffman (R-Colo.). His BRIDGE Act proposed to put DACA into statute for a three-year period while prohibiting its use for a path to citizenship. That, Coffman argues, would give Congress enough time to work out a comprehensive trade on immigration reform. After Trump's big Tuesday reveal, Coffman announced an effort to get a discharge petition for the sidelined bill to get a floor vote. That would, at the very least, spare everyone the spectacle of deporting students at the end of Trump's six-month lead time.
That has the greatest chance of success for the same reason the issue still exists. It allows Congress to kick the can down the road again. Like all the solutions, though, it depends on Congress and the White House acting rationally on immigration policy. Don't hold your breath.