The Trump administration announced the end of Deferred Action for Childhood Arrivals, or DACA, on a delayed, rolling basis. The decision is the right one. DACA is an extralegal amnesty at odds with our constitutional system. It has to go. But the delayed fuse gives Congress an opportunity to pass legislation dealing with this sub-set of the illegal population.
Instituted in 2012 by President Obama, DACA provided a functional amnesty to illegal immigrants under the age of 37 who applied to U.S. Citizenship and Immigration Services for deferred status. The program was Obama’s response to Congress repeatedly rejecting the DREAM Act, under the novel theory that the president can in effect impose legislation if Congress declines to pass it. The administration justified DACA as a mere exercise of prosecutorial discretion, the same absurd cover story that the courts rejected in the case of Obama’s other unilateral amnesty, known as DAPA.
Candidate Trump had promised to rescind DACA on Day One. But the president hesitated to follow through. Its beneficiaries are sympathetic, some having grown up here and having known no other country. That Trump initially balked at ending DACA is therefore understandable. He tried to strike a prudent balance, given the circumstances. Currently pending applications for deferred status will still be considered, and existing work permits due to expire between now and March 5, 2018, can still be renewed for a two-year period. But no new applications will be accepted after today and no renewals considered for permits expiring after March 5 of next year.
Trump is, appropriately, putting the onus on Congress for passing a legal version of the program. In theory, there should be a deal to be had, a DREAM Act–style amnesty in exchange for tightening in the rest of the immigration system. But Democrats may, cynically, conclude that they don’t need to negotiate, instead insisting on a simple codification of DACA and daring the Trump administration to really bring an end to the program. They also may figure they can divide congressional Republicans on the issue. Those in the party who favored the Gang of Eight immigration bill haven’t gone away, and they appear to be in a panic over DACA and eager for any deal, even a fig leaf.
Merely getting some funding for Trump’s border wall falls into that category. Trading a permanent amnesty for a one-time appropriation for a border wall that is mostly symbolism would be deal-making that conforms to the worst stereotype of feckless congressional Republicans. Unfortunately, the White House might be willing to go along with such a deal because the wall is Trump’s idée fixe, even though it is considerably less important than other enforcement measures.
Republicans should aim to trade a version of the DREAM Act for mandatory E-Verify for new hires on a nationwide basis and, ideally, for a significant piece of the RAISE Act, a bill recently introduced by Senators Tom Cotton (R., Ark.) and David Perdue (R., Ga.). Most relevant is the Cotton-Perdue provision to curtail chain migration, wherein recent immigrants sponsor their relatives, who sponsor their relatives, and so on. Congress should want to avoid making DACA recipients the next link in chain migration.
To get anything like this, Republicans will have to be stalwart and adroit, and the Trump White House will have to have a clear legislative strategy. We hope today wasn’t simply the beginning of the process of codifying DACA, with no meaningful enforcement in exchange.