The Corner

Immigration

When SCOTUS Rules on DACA, Then What?

Demonstrators hold signs outside the U.S. Supreme Court as justices were scheduled to hear oral arguments regarding the Trump administration’s bid to end the Deferred Action for Childhood Arrivals (DACA) program in Washington, U.S., November 12, 2019. (Jonathan Ernst/Reuters)

The Supreme Court hears oral arguments on the DACA case today, with a ruling expected next summer. At issue isn’t really the legality of Obama’s grant of work permits and Social Security numbers to some 700,000 illegal aliens, but rather whether President Trump is legally permitted to reverse a policy decreed by his predecessor.

Even if you think the Deferred Action for Childhood Arrivals program was legal (it wasn’t), it was not enacted through the notice-and-comment process mandated by the Administrative Procedure Act for issuing regulations — it was just a memo from then-DHS secretary Janet Napolitano ostensibly outlining prosecutorial-discretion guidelines to her three subordinates who handled immigration matters. The idea that a subsequent administration can’t issue a superseding memo without going through notice-and-comment is ludicrous. As Robert wrote here last month, “the executive had no right to enact DACA on its own, and the courts have no right to stop the Trump administration from correcting course.”

This should be a no-brainer even for the Democrat justices though, as has become customary, it may come down to Roberts. But assuming the Court rules in favor of the administration in, say, June 2020 — what then? Terminate the whole program immediately, and possibly turn off enough voters in Florida, Pennsylvania, and Michigan to lose the election? Or work with Congress to immediately pass an amnesty with no strings attached, and possibly turn off enough voters in Florida, Pennsylvania, and Michigan to lose the election?

One possibility might be to stop issuing renewals immediately but let existing work permits continue until they expire, at an average rate of about 1,000 a day. Then call on Congress to finally pass a targeted package that gives DACAs green cards in exchange for, say, mandatory E-Verify (to make it less likely we’ll have DACA situations in the future) and ending the visa lottery (to partly offset the extra legal immigration represented by the amnesty).

Alternatively, the White House could punt until after the election: announce that renewals will continue to be processed, but only through the end of 2020, after which work permits will begin expiring, leaving it to the new Congress and the new (or incumbent) president to work out a deal. Then one of the subjects of the election could be what the shape of such a deal should be. The Democrats will argue for a very expansive amnesty with no trade-offs — not just DACAs, but other people who came here illegally before age 18 but didn’t qualify for DACA, plus all the illegals with Temporary Protected Status. The Republicans could make the case for a balanced deal, one that acknowledges the prudence of legalizing the DACAs but also recognizes the need to limit the fallout of such a measure.

Could the Republicans pull off either approach successfully? The Stupid party’s track record suggests skepticism, but maybe they’re learning.

Mark Krikorian, a nationally recognized expert on immigration issues, has served as Executive Director of the Center for Immigration Studies (CIS) since 1995.

Most Popular

Law & the Courts

The March for Life Is a March for Truth

Pro-lifers are marching today, as they do every year, to commemorate a great evil that was done in January 1973 and to express solidarity with its innocent victims. The Supreme Court’s decision in Roe v. Wade eliminated legal protections for unborn children in all 50 states, and did so without any ... Read More
Law & the Courts

The March for Life Is a March for Truth

Pro-lifers are marching today, as they do every year, to commemorate a great evil that was done in January 1973 and to express solidarity with its innocent victims. The Supreme Court’s decision in Roe v. Wade eliminated legal protections for unborn children in all 50 states, and did so without any ... Read More

A Nation of Barbers

It seems almost inevitable that long hair is unwelcome at Barbers Hill High School. There’s a touch of aptronymic poetry in Texas public-school dress-code disputes. When I was in school in the 1980s, at the height of the Satanism panic, the local school-district superintendent circulated a list of ... Read More

A Nation of Barbers

It seems almost inevitable that long hair is unwelcome at Barbers Hill High School. There’s a touch of aptronymic poetry in Texas public-school dress-code disputes. When I was in school in the 1980s, at the height of the Satanism panic, the local school-district superintendent circulated a list of ... Read More
Law & the Courts

Clarence Thomas Speaks

Those who know Justice Clarence Thomas say that any perception of him as dour or phlegmatic couldn't be more off-base. He's a charming, gracious, jovial man, full of bonhomie and easy with a laugh, or so I'm told by people who know him well. On summer breaks he likes to roam around the country in an RV and stay ... Read More
Law & the Courts

Clarence Thomas Speaks

Those who know Justice Clarence Thomas say that any perception of him as dour or phlegmatic couldn't be more off-base. He's a charming, gracious, jovial man, full of bonhomie and easy with a laugh, or so I'm told by people who know him well. On summer breaks he likes to roam around the country in an RV and stay ... Read More
U.S.

Nadler’s Folly

Jerry Nadler must have missed the day in law school where they teach you about persuasion. The House Democrat made a critical error early in the trial of President Trump. He didn’t just say that Republican senators, who voted to begin the proceedings without calling witnesses, were part of a cover-up. He said ... Read More
U.S.

Nadler’s Folly

Jerry Nadler must have missed the day in law school where they teach you about persuasion. The House Democrat made a critical error early in the trial of President Trump. He didn’t just say that Republican senators, who voted to begin the proceedings without calling witnesses, were part of a cover-up. He said ... Read More