No issue has torn President Donald J. Trump as much DACA — that is the Deferred Action for Childhood Arrivals program enacted by the Obama administration in June 2012 to provide temporary legal status to undocumented immigrants who came to the United States as children. The White House has said that it will issue a decision on DACA’s future Tuesday.
As a candidate, Trump had promised his supporters that if elected, he would eliminate DACA on “day one.” But after he came into office, the new president could not pull the trigger.
“But the DACA situation is a very, very — it’s a very difficult thing for me,” Trump confessed to reporters in February. “Because, you know, I love these kids. I love kids. I have kids and grandkids. And I find it very, very hard doing what the law says exactly to do.”
Trump promised to “deal with DACA with heart.”
While candidate Trump pushed for tough enforcement of federal immigration law, President Trump clearly was moved by the same sentiments that prompted Sen. Orrin Hatch, R-Utah, to argue against rescinding a program that has allowed some 750,000 undocumented immigrants to remain in the country legally and apply for work permits.
“Like the president, I’ve long advocated for tougher enforcement of our existing immigration laws,” Hatch said in a statement. “But we also need a workable, permanent solution for individuals who entered our country unlawfully as children through no fault of their own and who have built their lives here.”
“These young people are known as Dreamers,” 43 Democratic Senators, including Sen. Catherine Cortez Masto of Nevada, wrote in a July 27 letter to Trump. “They came to the United States as children and are American in every way except for their immigration status. We have already invested in them by educating them in American schools. It makes no sense to squander their talents by deporting them to countries they barely remember.”
The calendar and a group of pro-enforcement state attorneys general apparently have prodded Trump to make up his mind, rather than allow the program to continue indefinitely.
In 2014 the attorneys general sued to stop the expansion of DACA and another Obama mandate — Deferred Action for American Parents, which provided legal status for 5 million undocumented immigrants who are related to DACA recipients. The attorneys general prevailed in federal courts and a 4-4 U.S. Supreme Court decision upheld their complaint.
In June the leader for the anti-DAPA attorneys general, Ken Paxton of Texas, wrote a letter that informed U.S. Attorney General Jess Sessions his group would sue to end DACA if the administration did not rescind DACA by Sept. 5, 2017.
“This September 5 deadline is a political deadline, not a legal deadline,” protested Marielena Hincapie, executive director of the National Immigration Law Center, in a statement. “It was completely manufactured by Texas Attorney General Paxton and other extremists within the White House and the Department of Justice, simply to box President Trump into a corner.”
With Neil Gorsuch on the U.S. Supreme Court, Paxton and company are likely to succeed.
Even though he later signed an executive order, Obama understood that unilateral action was highly vulnerable to a legal challenge. In 2010 he was asked why he had not passed legislation to legalize undocumented immigrants. Obama responded, “I am president. I am not king. I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen.”
After Obama signed DACA, he maintained that it was legal because it allowed the feds to exercise prosecutorial discretion by not pursuing undocumented immigrants who came here as children.
Federal Judge Andrew S. Hanen of Brownsville, Texas, however, overturned DACA because, he wrote, “Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits” — such as work permits.
In December 2010 congressional Democrats tried to pass the DREAM Act, which would have enacted a path to citizenship for some undocumented immigrants, but the measure garnered 55 votes — five short of the 60 votes needed to bring it to a floor vote. At the time there were 56 Democrats in the Senate and two independents who caucused with Democrats who voted for the measure. Four Democrats opposed the DREAM Act. Two Republicans supported it. Three Republicans and one Democrat did not cast a vote.
One door closed, another opened. In 2012, Obama authorized DACA, which mimicked provisions of the DREAM Act, unilaterally — a method that by its very nature left the door open for a successor to end the program unilaterally.
If Trump rescinds DACA, those who applied for temporary legal status likely would feel more vulnerable because they registered with the federal government, say advocates for undocumented immigrants. These organizations have been joined by leaders in tech and big business.
Mark Krikorian of the pro-enforcement Center for Immigration Studies noted that the DREAM Act offered protections for “genuinely sympathetic cases of people who came as infants and toddlers.” But, he added, “the DREAM Act itself was never intended to pass on its own — it was a marketing gimmick to make the case for amnestying all 12 million illegals.”
Since Trump first failed to rescind DACA, the smart money has been on Trump reaching across the aisle and passing a measure that protects so-called Dreamers — who did not choose to come to the country illegally — but also bolsters enforcement, perhaps by funding the wall.
On Friday House Speaker Paul Ryan told local radio station WCLO he did not think Trump should rescind DACA, as “this is something that Congress has to fix.” A “heartened” House Minority Leader Nancy Pelosi invited Ryan to meet with Democrats to discuss the issue.
But when McClatchy News reported last week that the Trump White House was considering a compromise bill that included Dreamer protections and more law enforcement, Pelosi was incensed. As if to bolster Krikorian’s point, she tweeted, “It is reprehensible to treat children as bargaining chips. America’s DREAMers are not negotiable.”
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