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Thinking through DACA

6 October 2017

Much of my writing emphasizes the need for, and repeated lack of, Americans thoughtfully examining and responding to the challenging issues of our time. The current DACA debate provides an opportunity to see thoughtful examination and response both happening and not happening.

The following overview at https://www.raicestexas.org/pages/faq provides a reasonable starting point for “thinking through DACA”:

In June of 2012, after pressure from community organizations, President Obama announced DACA. DACA stands for Deferred Action for Childhood Arrivals. We refer to this program as DACA 2012; the program essentially means that certain children, those who arrived to the United States prior to turning 16 years of age, would no longer be a priority for deportation. In addition to having arrived before the age of 16, in order to be eligible for DACA one must meet a few other criteria:

  • Have lived in the United States for at least 5 years, beginning in June of 2007;
  • Are currently in school , have graduated from high school or completed an accredited GED program (or are enrolled in a program);
  • Does not have a felony, more than 3 misdemeanors, or any significant misdemeanor.

While there are other requirements, these are the most basic in order to qualify for DACA as announced in 2012.

There are two key considerations from the quote above. They are “Deferred Action” and “no longer a priority for deportation”. Given these conditions, the reference later states, “It is important to know that the granting of deferred action does not, directly, lead to the grant of any form of permanent legal status; deferred action just means that you are no longer a priority for deportation.”

The “raicestexas” reference in paragraph two above also explains that on 20 November 2014, President Obama announced an expansion of the 2012 DACA and a new program for parents. Per the reference, “This expanded version of DACA removes the previous age-cap as well as well as only requiring proof of continuous presence from January 1, 2010. Expanded DACA would grant deferred action for a period of three-years, instead of the traditional two-year period.” The program for parents was Deferred Action for Parental Accountability (DAPA). The program addressed parents of a United States citizen or legal permanent resident.

Coupled with the provisions of DACA, President Obama provided an avenue for program participants to get work permits. This means persons who entered the country illegally would be allowed to work and receive benefits, such as health care insurance.

President Obama took all of the actions outlined above in spite of, earlier, making the following comment as reported in an article by Hans A. von Spakovsky titled, “DACA Is Unconstitutional, as Obama Admitted”:

Responding in October 2010 to demands that he implement immigration reforms unilaterally, Obama declared, ‘I am not king. I can’t do these things just by myself.’ In March 2011, he said that with ’respect to the notion that I can just suspend deportations through executive order, that’s just not the case.’ In May 2011, he acknowledged that he couldn’t ’just bypass Congress and change the (immigration) law myself. … That’s not how a democracy works.’

A court challenge to DAPA brought by 26 states, and led by Texas, went to the Supreme Court. The result of that challenge gave some support to President Obama’s initial assessment reflected in the preceding quote regarding DACA. The course of this lawsuit is recounted in an article by Adam Liptak and Michael D. Shear titled, “Supreme Court Tie Blocks Obama Immigration Plan.” The plaintiffs contended that the president ignored “administrative procedures for changing rules and of abusing the power of his office by circumventing Congress”. Judge Andrew S. Hanen of the Federal District Court in Brownsville, Texas, agreed with the plaintiffs, as did the appeals court. The appeals court did not stop at confirming Judge Hanen’s ruling: it added that the program exceeded President Obama’s statutory authority.  The decision of the Supreme Court was a 4-4 tie; consequently, the rulings by lower courts stood. DAPA was not implemented, although it could be brought up again now that the court is fully staffed.

What happened in the legal proceedings regarding DAPA is important to thinking through DACA. Addressing DACA, Miriam Jordan’s article titled, “‘Dreamer’ Plan That Aided 800,000 Immigrants Is Threatened”, says: “But discussions about it inside the White House took on new urgency after a group of conservative state attorneys-general threatened to sue the Trump administration in federal court unless it begins to dismantle the program by Sept. 5.”

There are several more bits of information that might be considered in “thinking through DACA.” I contend that what has been presented to this point is sufficient. President Obama signs an executive order that he had indicated was beyond his authority. Even if, as he later agued, his action was one of prosecutorial discretion, he went beyond that authority by providing for work permits being given to people who should not have received them. “Prosecutorial discretion” means he could, based on various factors, decide who to prosecute and who not to prosecute.

The fact of life is that deferring deportations does not solve the problem at hand. It simply passes the problem from one presidential administration to the next. This approach is absolutely irresponsible and reflects a governing process that is approaching disarray.

The legal action that precluded implementation of DAPA likely foreshadows a similar fate for DACA if it were challenged in court. Given that a group of state attorneys-general clearly stated their intention to sue if dismantling of DACA were not started, a DAPA-like decision is on the horizon.

Considering this landscape, President Trump was totally correct to call on Congress to, by legislation, settle the situation that was inadequately, very likely illegally, addressed by DACA. Regarding the Trump decision, Sabrina Eaton writes the following in an article titled, “President Trump cancels DACA program for unauthorized immigrants after a six-month delay”:

Attorney General Jeff Sessions said the DACA program will wind down after six months to give Congress time to address the fate of the program’s participants. He said the Department of Justice evaluated the policy’s constitutionality and determined it conflicts with immigration laws.

The Trump approach reflects “thinking through DACA.” There is a multitude of examples demonstrating how it looks when thinking through does not happen. Consider individuals and groups that are verbally attacking President Trump for his response to the DACA dilemma. People are protesting his decision and labeling him in all kinds of despicable terms. How is it thoughtful that a person attacks Trump instead of addressing Congress, which should have settled the matter years ago? It leads me to think this is about destroying Trump and not about solving the problem.

This lack of thought, and questionable motives, shows through time and again. In an article titled, “Pelosi: Dreamers’ parents ‘did a great thing’ in sneaking them into U.S.”, Stephen Dinan writes: “House Minority Leader Nancy Pelosi said Wednesday that illegal immigrant parents who brought their children to the U.S. in defiance of the law ‘did a great thing,’ giving the country an infusion of successful young people.” I cannot see how a statement such as this reflects serious thought regarding the issue at hand. It simply feeds the atmosphere that produces thoughtlessness.

My hope is that thoughtful people will call on Congress to fairly and expeditiously address the DACA issue. Granted, I will be pleasantly and totally surprised if Congress acts at all.

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