Immigration

A Legal Victory on DACA Will Be Terrible Political News for Trump

Trump is caught in a trap of his own making.

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The Supreme Court will rule this month, possibly Thursday, on whether President Donald Trump acted legally in scrapping Deferred Action for Childhood Arrivals (DACA), an Obama-era program that gave some 650,000 eligible Dreamers a temporary reprieve from deportation, along with work permits. (Dreamers are folks who have grown up in this country as Americans even though they were brought here without proper authorization as minors.) Trump is likely to win the legal fight, but that's not necessarily good news for him since this will put him in a political trap of his own making: Having squandered the opportunity to pass legislation to give them legal status, he will anger his hardline restrictionist base if he fails to deport these people when he has the green light. If he does deport, he will anger many Americans.

The administration is claiming that it didn't act illegally in scrapping DACA but that President Barack Obama acted illegally in creating it. It is arguably right about the first and certainly wrong about the second, although it's possible that the Court's conservative majority will agree with it on both counts. So why is it wrong to claim that DACA is illegal?

DACA does not hand anyone permanent legal status; that would be illegal. All it does is give Dreamers who arrived in the U.S. before they turned 16 and were under 30 and had lived in the country crime-free and were either high school graduates or working toward that goal or were honorably discharged veterans a reprieve from deportation on a two-year renewable basis. In legal parlance, this means they've been paroled from enforcement action. Paroled immigrants are automatically entitled to Social Security numbers, work permits, and driver's licenses under provisions in the Immigration and Nationality Act (INA), which Congress included decades ago in an attempt to ensure these folks would not starve or go on the dole. Although there are around 5.5 million Dreamers in the country—about half of the total unauthorized immigrant population—only 800,000 availed themselves of DACA. That number has dropped to 625,000 over the last three years as some have either become ineligible or were too afraid to renew their status under this administration.

The reason that the Trump administration is wrong in claiming that DACA is illegal is that standing immigration law hands the president near-complete prosecutorial discretion to set enforcement priorities, as The Volokh Conspiracy's Ilya Somin and I have argued repeatedly. Moreover, Congress has stipulated no fixed penalties for any particular immigration infraction, so it's not like throwing Dreamers out of the country is the only enforcement action consistent with the rule of law, as restrictionists insist. A president can require unauthorized immigrants to cough up fines or choose from a whole host of other remedies. In fact, the Congressional Research Service has pointed out that the INA is chock-full of huge grants of statutory authority to the president on immigration enforcement.

However, Cato Institute's Ilya Shapiro and Somin's Volokh co-blogger Josh Blackman disagree. They claim that setting immigration policy is Congress's, not the president's, job. Therefore creating DACA without congressional authorization—a goal they wholeheartedly support—means that the executive is assuming powers expressly delegated to Congress. Nor could Congress delegate them away even if it wanted to. Hence, they maintain that DACA is illegal.

The trouble with that position is that every president since at least 1956 has granted temporary immigration relief or parole to one or more groups—including, as the American Immigration Council, an immigration research and advocacy outfit, notes, to 600,000 Cubans in the 1960s and over 300,000 Southeast Asians in the '70s.

Shapiro and Blackman argue that in all past cases such deferrals have served as a "temporary bridge" for people whose permanent legalization Congress had already authorized or was in the process of authorizing. By contrast, Obama implemented DACA even though Congress had declined to pass an amnesty bill.

But The Federalist Society's Margaret Stock, an immigration lawyer and the recipient of the MacArthur Fellowship, said in an interview that this is not true either. She points to the Family Fairness program that was created by President Ronald Reagan in 1987 and expanded by President George H.W. Bush. This program handed temporary deportation relief to the unauthorized spouses and children of a class of immigrants who had received amnesty under the 1986 Immigration Reform and Control Act (IRCA). Without such relief, hundreds of thousands of families would have had to wait in line until the originally-eligible applicant had acquired permanent residency or citizenship and could sponsor them. In the interim, families would be in legal limbo, something that neither Reagan nor Bush wanted. Though Congress did ultimately pass a law legalizing these folks, Stock claims neither president could have been sure of that and there is no reason to believe that future Congresses won't legalize Dreamers.

If the Supreme Court buys the argument that DACA is illegal, it'll make it harder for future presidents to reinstate the program. But that does not mean that the Court has to rule against the administration. Why? Because prosecutorial discretion means that what one president giveth, another can taketh away.

Immigration advocates don't necessarily dispute this. They argue the issue is not that Trump eliminated the program, but rather how he went about it. He yanked it suddenly, without offering a notice and comment period as required by the Administrative Procedure Act.

Interestingly, Obama didn't submit DACA for notice and comment before implementing the program either. However, two wrongs don't make a right. Moreover, The Atlantic's Garrett Epps explains that the two moves are not analogous because before DACA, its beneficiaries had formed no "reliance interests" in the program but now they have. They and their loved ones, many of them American, stand to lose something now and should have been given an opportunity to weigh in on Trump's decision. More to the point, DACA recipients shared their personal information with the government, including names, addresses, and employers. That same information could now be used to deport them. If the Trump administration had put its decision up for feedback as required, it would have had to at least put in place safeguards barring Immigration and Customs Enforcement (ICE) from using this information for deportation purposes.

It is possible that this argument will give conservative justices some pause. Chief Justice John Roberts expressed a lot of sympathy for Dreamers during past oral arguments. However, he also indicated that the administration was on a solid legal footing in eliminating the program and suggested that the Court would instruct the administration to minimize the hardship when doing so.

But the Supreme Court might be delivering Trump terrible political news by handing him a legal victory. Trump's restrictionist base will demand that he deport Dreamers en masse if there are no legal impediments to doing so. However, the brutal killing of George Floyd has sensitized the country to the excessive use of state violence against vulnerable minorities. A Politico/Morning Consult poll today showed that 69 percent of Americans who voted for Trump want Dreamers protected.

The general public has little appetite for scenes of ICE agents yanking away Dreamers, who have built lives in this country and committed no crime of their own, from their loved ones.

NEXT: The Justice Department Is Trying To Stop the Publication of John Bolton’s White House Tell-All

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  1. Dammit. There aren’t any comments. Don’t make me read the article.

    1. I’m sure there is a law someplace stating that the federal government, and specifically the executive branch, can only grow in size and power. Trump’s attempt to override a pre-existing executive order is obviously unconstitutional.

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      2. >Trump’s attempt to override a pre-existing executive order is obviously unconstitutional.

        Thanks for the chuckle. It’s always fun to make up different rules for your political opponents.

    2. Warning:
      Shikha Dalmia articles may not reflect reality. In some cases they may decrease your comprehension of factors involved. Shikha can overwhelm a person’s ability to detect fallacies, including existential fallacy. “Serious events” — including brain infarctions, depression and various types of delusions — have happened.
      Ask your psychiatrist if Shikha is right for you.

      1. I have to give Shikha Dalmia credit for one thing. There are few people who can layer interwoven fallacies at a rate that by the time you spot one, 3 more have hit you. One is bound to get through and pierce your soul.

        On another note, illegal immigration is apparently the only thing that she can functionally write about. It’s like listening to a preacher who gives the same sermon week after week. I should at least wonder from time to time what she’s going to write about next and be surprised when she stops repeating her lone opinion. She has all the appeal of a metronome made from a squeaky hinge.

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      2. “he will anger his hardline restrictionist base if he fails to deport these people when he has the green light. If he does deport, he will anger many Americans.”

        And if he stalls until after the election, which is coming soon anyway, who are his supporters supposed to vote for? Biden?

        Pols always want to keep issues alive until *after* the election. Trump supporters have to hope he comes through. What alternative do we have?

        Trump’s 2nd term is the time that *maybe* he pushes the pedal to the metal.

        If the Left continues with their rioting and violence, Trump will deploy federal troops to *sanctuary cities*. Good time for some deportations. After the elections.

        *Before* the election, he can end foreign work visas. That’s a big fat bone that puts more money in the pockets of Americans. And hits directly at the tech companies already in the crosshairs.

    3. It’s a Shikha byline. You can skip the article as you know what it will say.

  2. Just do what we usually do and call her a moron and that her arguments lack the substance to actually be called arguments.

    Sad when fucking Buzzfeed isn’t as clickbaity as Reason.

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  3. Trumps gonna drop out any day now. There’s no way he can win.

    1. He knows. It makes him sad. I think he’s gonna cry.

    2. I’m ready for President J-j-joe Bu-bu-biden!

    3. Trump will not drop out before he has screwed over the GOP. I predict he waits till the Senate is lost and no one (Pence or another) can reasonably step in to save the day. Then after the election he will tell his followers that had he stayed he would surely have won.

      1. “I predict he waits till the Senate is lost”
        That’s not how it works.

        1. Retarded radical leftists aren’t real good at comprehending how elections work. Give him a minute to go find a fresh talking point from Democratic Underground.

          1. I’m pretty sure that about half the Democrats still think that if they had successfully impeached Trump that Hillary would have gotten the job.

        2. You may not noticed but Senator Joni Ernst is polling within the margin. That seat should be a lock for the GOP. How many more Senate seats will Trump cost the GOP before this next election is over.

          1. You may not have noticed that they all get elected on the same day so there is no universe where Trump can drop out of the Presidential race after the Republicans lose the senate.

            Fuck, you leftist are dumb.

  4. If SCOTUS rules for the President it is possible that Senator McConnell could save his backside by quickly passing a DREAMERS act. I recommend he have one ready that will get 60 votes.

    1. Executive branch law by fiat is a good idea? There are no Constitutional issues here?

      1. Libertarians love them some rule by unitary judiciary.

  5. Interestingly, Obama didn’t submit DACA for notice and comment before implementing the program either.

    Seems to me that such a fact means it was never legal

    1. “Progressive” programs are always legal. In fact, they’re legal before they’re invented, only the failure to implement them can ever be illegal.

    2. Congress rejected the DREAM act or substantially similar bills something like 11 separate times. Obama knew he could not do it on his own, he even said so multiple times, but then went ahead and did it anyway.

      Back in 2103…

      “President Barack Obama demurred Wednesday when asked on Spanish-language television whether he would consider a moratorium on deportations of undocumented people without a criminal record.

      “I think it’s important to remind everybody that, what I’ve said previously, I am not a king, I am head of the executive branch of government,” Obama said in an interview with Univision. “I am required to follow the law, and that is what we’ve done.”

      “But what I have also said is let’s make sure we apply law in a way that takes into account” people’s humanity, Obama said.

      The president, instead, put the onus on Congress to pass a comprehensive immigration overhaul bill, saying he expects immigration revisions to be law before the end of the year.

  6. The Walls Are Closing In!!!!

    Every single upcoming decision is fraught with peril for Trump (and only Trump).

    I think I should write a markov chain Reason article generator. Save a lot of salary and time generating content …

    1. I think I should write a markov chain Reason article generator. Save a lot of salary and time generating content …

      Reason stopped hiring writers a while ago. Chinese bots ‘write’ the content and the contributors edit for relevance and personal flair.

      1. That is so … obvious … in retrospect.

      2. It is never more obvious than with articles written by Dalmia, who I am quite convinced is a first generation bot that merely shuffles the words of the same original article and inserts keywords from a news headline.

    2. Immigration reform is a hot-button issue because there’s a group of people who are constantly enraged over it, but most people find the people who are constantly enraged over it to be noxious. Moreover, many of them are racist, which makes people feel like everyone who is opposed to immigration is racist.

      Winning on this issue would be bad for Trump precisely because it would put him on the hot seat. Complaining about this is better for him politically than actually winning, as complaining about it doesn’t mean he has to actually do anything about it, but actually doing something about it could be politically ruinous.

      Trump has alienated many moderate Republicans already. At some point, people like Mitt Romney will be pushed to vote for Joe Biden, and that’s going to be the death of the Republican Party.

      1. At some point, people like Mitt Romney will be pushed to vote for Joe Biden, and that’s going to be the death of the Republican Party.

        LMFAO. Yeah, when you’ve lost the radical left wing Massachusetts Democrats…

        1. He’s alienated all those Republicans who were certain he wouldn’t win in 2016. If he can’t count on the NeverTrump vote, however will he win?

          1. And how many times have we heard that Trump is finished, this is the final blow, he’s just lost the vote of [fill in the blank with a group who didn’t vote for him last time either]. It’s only made more hilarious when someone throws in “the death of the Republican Party”. So much DRAMA!

  7. “Having squandered the opportunity to pass legislation to give them legal status,”

    Because they’re owed legal status?

    1. Haven’t you heard? They are owed citizenship.

      1. Where’s CHAZ’s DACA program!

  8. I know it’s not fair to make the comparison because Trump is no Constitutional scholar, but how many 9-0 decisions has the court had against Trump?

    I mean, even if you thought a single 9-0 decision would cause people to waver in their adulation of a 2-bit political idol, the impartial (to Trump) empirical evidence should disabuse you of such notions.

    1. Care to list the 9-0 decisions that Trump position lost?

      1. That’s what I was asking. I know Obama had nearly a dozen 9-0 spankings from SCOTUS before his second term. I know the running average for any given President’s term is a 60-70% success rate. If you thought a divided or even unanimous dissenting opinion from SCOTUS was some sort of death-knell for a President’s second term, then Obama proved you thoroughly wrong and applying the debunked fallacy to Trump reveals you to be some sort of ideological bitter clinger.

    2. This sort of 9-0 ruling?

      Oh, wait, that was 9-0 in Trump’s favor. On immigration. My bad.

  9. >>the Court’s conservative majority

    larf o’ the day.

    1. When you sit to the left of Mao, even Roberts looks conservative… sorta…

  10. “so it’s not like throwing Dreamers out of the country”

    Correct me if I wrong, but Congress has never given any special status to dreamers. So wouldn’t they actually be considered the same as all other undocumented residents?

    1. Officially, it is supposed to be just deferred action. It would be like a jail sentence that doesn’t require you to report immediately. They don’t have a legal presence and can be deported as soon as the deferment expires.

      1. They don’t have a legal presence and can be deported as soon as the deferment expires.

        Except when the court determines that you can’t rescind the deferment because apparently executive orders are of a higher legal status than actual laws passed by the legislature. And libertarians beat off like a bunch of chimps on cocaine over a return to monarchy. I really, truly, honestly, without any hint of exaggeration hope that all of you fucking die of pancreatic cancer.

        1. It’s almost like you don’t actually know any libertarians. You’re like the opposite of Tony.

        2. Except when the court determines that you can’t rescind the deferment
          Without rescinding, they would still expire. The deferments are for a fixed duration. I believe the court ploy is to say the deferments must be renewed.

    2. >Correct me if I wrong, but Congress has never given any special status to dreamers. So wouldn’t they actually be considered the same as all other undocumented residents?

      Exactly. They basically revert to the status of everyone else. It’s nothing more than a pre-Obama status for everyone. The false dichotomy being repeated in the article and a few comments is that Trump must either unleash the power of massive federal raids or lose his entire base that demands it. This ultimatum from the same group who predicted he would “load them in boxcars” and ship them to the border. Dire consequences that are just around the corner are a part of the wet dreams for so many leftists.

      These soothsayers might have just a tiny bit more to hedge their bets on had Democrats not held him back on this anticipated “win” till 4 months before the election when all hands will be on deck for a campaign and in the midst of things that most Americans consider FAR more critical. Though there are no doubt exceptions, most people consider the economy, COVID-19 and all it’s complications, unemployment, riots and looting, and so much more to have far more importance in their own lives and thoughts about what a President should be doing. And there are a LOT of folks who even if they think he should round em up by the millions, are gonna cut him a break for the bitch of a year he’s had. They sure aren’t going to throw him out of office and support Biden because Trump didn’t ship all the DACA folks out.

      1. ” in the midst of things that most Americans consider FAR more critical.”

        Many Republicans consider immigration the *most* important issue, if not the most critical. Endless mass immigration will determine *all* issues against the wishes of Republicans.

        Import Not Americans, Become Not America.

        By *holding off* on action, Trump supporters know it’s Trump or Biden making the decision on DACA. Guess who they want?

  11. So, if one president waives his hands and makes a law by executive order, another can’t just waive his hands and undo it?
    Progressive Ratchet Theory.

    1. I thought ruling by arbitrary dictates and mind games was called the Nurse Ratchet Theory.

    2. It depends on who benefits.

    3. As they noted in the article, it’s almost certainly the case that Trump should be able to get rid of the program from a legal POV.

      It’s just probably a bad idea for him to do so politically.

      1. Yes, I’m sure that progressives would say that any action that reversed a progressive desire is a “bad idea”. OTOH, another Trump win makes yet another a promised kept to his base.

    4. read every federal court ruling which was stoppedTrump from ending the program…that was pretty much their logic

  12. DACA does not hand anyone permanent legal status … Paroled immigrants are automatically entitled to Social Security numbers, work permits, and driver’s licenses …
    So legal status, but not legal status.

    1. Being paroled is not the same thing as being pardoned.

    2. This was the part that always got me. Congress rejected DREAM act many times, and while the executive can choose to not prosecute some people, how does choosing not to prosecute (yet) entitle them to benefits of legal green-card holders?

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  13. no Shikha…lol..it will do the opposite

  14. 5.5-Million!!!! Outrageous… Total USA population growth from 2019 (328.24M) to 2020 (329.73) was only 1.49M.

    Mexico total population 2020 (128.87M).
    If that 5.5M was a yearly figure; We’d entirely be Mexico in 20-years!!!

    No wonder the country is starting to resemble Mexico’s. Becoming American isn’t as simple as illegally jumping a fence for greener pastures and just as it is with money; the *earning-it* part is what makes it desirable.

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