DACA

A Simple Way to Help Protect DACA Against Legal Challenges

President-elect Joe Biden has promised to fully reinstate DACA. But such a move will surely be challenged in court. Here's an easy way to reduce the risk that such challenges might succeed.

|

President-elect Joe Biden has promised to fully reinstate the DACA program as one of his first steps, once he formally becomes president on January 20. DACA is the Obama-era program suspending deportation of some 700,000 undocumented immigrants who came to the United States as children. It allows such migrants (often referred to as "Dreamers," after the Dream Act, which failed to pass Congress) to stay in the U.S. as long as they arrived in the  country when they were 15 years old or younger, were 30 or younger when the program began in 2012, have not been convicted of any crimes as of the time they apply for the program, and have either graduated from a U.S. high school, are currently enrolled in school, or have served in the armed forces. In addition to suspending deportation, the program also allows DACA recipients to obtain authorization for work in the US and accrue "lawful presence."

Last year, a closely divided Supreme Court invalidated a Trump administration effort to terminate DACA. But it did so on narrow administrative-law grounds that left open the possibility that Trump—or a future president—could easily terminate DACA in the future, so long as the administration did its administrative law homework somewhat better.  Significantly, the majority decision sidestepped the issue of whether DACA was legal in the first place. In the aftermath of the ruling, the Trump administration has continued to try to pare back DACA, and eventually get rid of it.

Biden's plan to fully reinstate DACA will almost certainly be challenged in court by red state governments and others, who will argue that it exceeds the legal scope of presidential power. The most vulnerable point of the program is the grant of "lawful presence" to recipients. For reasons I summarized here, this provision doesn't actually do very much. It is not necessary to protect Dreamers from deportation, and all it really does is enable them to accrue eligible time for the receipt of Social Security and Medicare benefits that, however, they are unlikely to ever actually collect unless their status is genuinely legalized at some point in the future, and they remain in the US until after retirement age. If the latter were to happen, the legislation granting legal status could easily also grant lawful presence for the entire period Dreamers spent in the United States, regardless of whether the DACA executive action previously did so.

But, despite its substantive insignificance, the grant of "lawful presence" is easily attacked as going beyond a mere exercise of prosecutorial discretion not to deport migrants, and instead extending an "affirmative benefit." This idea was emphasized by lower court decisions striking down the larger DAPA program in 2016, and by the conservative dissenters in last year's Supreme Court case.

The incoming Biden administration can easily eliminate this vulnerability simply by omitting "lawful presence" from its new order reinstating DACA. Alternatively, Biden could include a severability provision in the order, clearly indicating that the rest of the order will remain in force if the lawful presence element gets invalidated in court. Such "severability clauses" are given great deference by courts when they are included in congressional legislation. It is less clear that courts will respect a severability clause in an executive order. But there is at least a substantial likelihood they will.

The grant of work permits can also be attacked as an "affirmative benefit." In this case, however, the benefit in question does have congressional authorization, based on a 1986 law that specifically permits employment of aliens who are "authorized … to be employed … by the attorney general." There is no such unambiguous legislative authority for a grant of "lawful presence."

There are other arguments against the legality of DACA. I addressed them in some detail here and here. But they are much weaker than the attack on "lawful presence." Excising the latter could well make the difference between victory and defeat in court.

In the long run, the best way to institutionalize DACA would be for Congress to pass legislation to that effect. Even if Biden reinstates the policy through executive action, and it survives legal challenge, a future administration could potentially rescind it later, so long as it gets its administrative-law ducks in line. Not every GOP administration is likely to be as shambolic as Trump's often is.

In the meantime, however, a successful executive reinstatement of DACA can provide much-needed protection for hundreds of thousands of vulnerable immigrants who would otherwise be subject to the threat of deportation through no fault of their own. That's good for both them and the US economy, which benefits greatly from their many contributions. Dropping the questionable "lawful presence" element of DACA (or at least making it clearly severable) is a small price to pay for achieving that goal.

NEXT: Last Week's Argument in the Philadelphia Foster-Care Case

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “President-elect”

    LOL

    1. You sound like that cackling televangelist Copeland.

      Do you speak in tongues, too, you bigoted culture war loser?

    2. One now sees Trump supporters doubting the word of Republican Secretaries of State in four states that the votes there were properly counted.

      1. How soon we forget.

        “Anti-Trump forces launch attack on Electoral College
        The last-ditch effort to stop Donald Trump is gaining momentum.
        By KYLE CHENEY
        11/30/2016 05:10 AM EST

        https://www.politico.com/story/2016/11/donald-trump-electoral-college-231980

        Dems had four years of running around like hysterical fools. I think the other side can get at least a few weeks of anger too.

        1. Never acted on nonsense versus the actual President of the United States.

          Good luck with how that makes you guys look.

          1. Unlike Demoncrats, Republicans will have far less in the way of temper tantrums and move on. For example Republicans aren’t going to run nationwide ads asking electors to overturn the vote.

            1. Except for The Actual Current President of the United States.

              1. He isn’t really a Republican, he just plays one on TV. (That’s why he couldn’t win an election.)

    3. Also, who says the new court won’t be as creative as the last one?

      So sorry, your paperwork wasn’t quite done right this time either….

  2. I wish Biden the best in liberalizing immigration policies again. Thank you Professor Somin for this thoughtful piece.

  3. so here’s my scheme to ignore US law…

    1. Yes, Ilya Somin wants to violate US law because the law is not above his feelings and beliefs.

  4. I think one of the things that the House should do soon after the inauguration is pass a clean DACA bill, endorsed by Biden, and send it to the Senate. Nothing tricky, no complications or add-ons. Just legalize the Dreamers – give them a path to citizenship, etc.

    If McConnell kills it then it’s on his head, and no more BS about how Republicans are all for the Dreamers, but….

    In fact, I think passing and sending on a lot of very clean bills is sound strategy overall. Set up a clear contrast, and let the 2022 races be run on the record.

    1. This is one of many. There should be a big publicized push of a bunch of popular legislation (see: Contract with America) that the House passes and trumpets and watch McConnell have to kill each bill one by one and see how it plays.

      1. Dems passed hundreds of message bills last two years. Dems lost 10-14 seats.

        Nobody cares about these bills.

        Some foolish bigot here thinks the new Congress will pass many message bills in the one day before the run off in Georgia and that will put the Senate on the spot. Are you also a fool?

        1. How are the no-count, superstitious bigots of backwater Ohio celebrating the election? An extra handful of street pills? A special viewing of Kenneth Copeland? Maybe a rattlesnake-juggling exhibition brought in from West Virginia? Watching the last big employer in town pack up and move out? Driving around in $1200 pickup trucks with 12-foot Trump signs?

      2. Bernard and Sarcastro,
        We have had enough of “one-upmanship” from everybody – though I must say that the leadership in both chambers of Congress are the most-extreme and egregious examples.

        Why not tamp down the tenor and focus on constructive interpersonal discussions between reasoned legislators? (As far as a DACA policy itself, see my earlier below comment.)

        1. Dunno if passing popular bills is one-upsmanship.

          1. If this was a popular bill, why couldn’t Obama get it through a Congress his own party controlled?

            Answer: The premise was false.

            1. You don’t think protecting Dreamers is popular?

              1. Not among people who care about it, no. Maybe among people who don’t particularly care, and just say they’re in favor of it if asked, but would never bring up the topic on their own, or vote on the basis of it.

                And not in the manner Democrats are adamant it must be done, with absolutely no effort to make sure this latest amnesty doesn’t trigger another flood of illegal immigrants eager to take advantage of the NEXT amnesty, just like the Reagan amnesty did.

                Democrats could have had DACA any time in the last 4 years, if they’d just have been willing to relent on holding our borders open, and trade real border security for it. But they didn’t actually give a damn about the “Dreamers”, they just wanted amnesty for them to be bait to bring in more illegals, and accelerate their program of forced demographic change for America.

                1. Yep…

                  In many ways, it’s far more “useful” for the Democrats to have Dreamers as a group who perpetually want citizenship, than a group that actually HAS it.

                  Think about it.

                  What’s more important to the Democrats. Getting the Dreamers citizenship? Or denying Trump a political victory with wall funding?

                  Answer. Denying Trump a political victory.

                2. “And not in the manner Democrats are adamant it must be done, with absolutely no effort to make sure this latest amnesty doesn’t trigger another flood of illegal immigrants eager to take advantage of the NEXT amnesty, just like the Reagan amnesty did.”

                  Reagan was a Democrat stooge, in other words. To be effective, you have to combine amnesty with a change in policy. Having an amnesty, loudly proclaiming “and this is the LAST ONE, ever!” and then going back to business as usual ain’t gonna get nothing done. Run an amnesty for people who can show they became Americans as best they could, and then offer a program for temporary access to work here in the states but nothing else. Or just talk about how you’re going to deport every illegal you catch, and cap your deportations at around 400k per year. That oughta scare ’em enough to stay home. Or hey, why not build a wall that tumbles into the Rio Grande in a couple of months, to show ’em we mean business.

            2. “If this was a popular bill, why couldn’t Obama get it through a Congress his own party controlled?”

              You mean like the way Trump signed the better-than-ACA healthcare bill on Day One?

        2. “Why not tamp down the tenor and focus on constructive interpersonal discussions between reasoned legislators?”

          You have to find some before you can have constructive conversations with them.

      3. Why would it pass now, when a clean bill couldn’t pass in 2010?

        1. Because it only needs to pass the House.

          1. The bill doesn’t need to pass the senate?

            1. Now you’re getting it.

              1. OK….if you’re just going to pass the same bill in the House that’s been passed several times before, only for the Senate to shoot it down again…

                1. He’s fantasizing that shooting it down will be so unpopular they’ll take the Senate in 2022.

                  1. Sigh….

                    This mentality that it’s better to get a bill shot down by the GOP than to actually compromise and get the bill passed is why there is no Dreamer bill.

                    Democrats: “We want a Dreamer Bill”
                    GOP: “OK. But we want some insurance in the bill this won’t lead to more widespread illegal immigration. Maybe some wall funding, or E-verify. OK?”
                    Democrats: “No Compromise! The Dreamers will stay illegal, and we’ll make you vote against a “clean” Dreamer bill instead. That’s the win for us!

                    Meanwhile the Dreamers are like “Why aren’t we legalized yet? Can’t you just give them the wall funding? Or is the Political “win” more important than our status?”

                    1. This is pure nonsense. You, yes you and the GOP generally have taken the position that compromise is weakness and Democrats are baby-killing evil demons. After Obama, it’s quite clear that Dems purely seeking compromise won’t end with progress being made, and I’m pretty sure it’s y’alls fault.

                      Everyone knows who cares about the Dreamers. And it’s clear you know how unpopular the GOP’s position is, based on the elaborate and false scenario you have concocted here.

                    2. No, we’ve taken the position that amnesty attracts more illegal immigrants, so, no amnesty without additional border security.

                      And after that bait and switch with Reagan’s amnesty, the border security better come up front, not afterwards.

                      But Democrats won’t agree to additional border security, because they want more illegal immigrants: Illegal immigration has been central to the Democrats’ dreams of eventual demographic victory.

                    3. “This mentality that it’s better to get a bill shot down by the GOP than to actually compromise and get the bill passed is why there is no Dreamer bill. ”

                      Or is it the “our base doesn’t want us to sign off on any ‘Dreamer’ bill, so we won’t even vote on whether or not to read the damn thing” is why there is no “Dreamer” bill. Definitely one or the other.
                      Compromise is only possible where two parties want to compromise. If only one side wants to make a deal, there won’t be one.

                    4. “, we’ve taken the position that amnesty attracts more illegal immigrants”

                      Which is both unproven and a bit stupid. Thus, very Republican.

                      What creates illegal immigrants is having conditions here being at least somewhat better than the conditions where those would-be immigrants are currently residing, and having regulations that prevent people from coming here lawfully.
                      I know, I know. We only want rich people from free societies to decide to move here and become Americans. But rich people from free societies have no reason to leave, so they don’t, and if they don’t leave where they are, they don’t come here.

    2. It’s my understanding a few “Georgia Specials” will be sent to the Senate even before the inauguration, enabling Georgians to evaluate the wisdom of sending obsolete bigots to represent them.

      1. You have no knowledge or understanding of anything except which soup can you’ll choose today.

        1. “no knowledge or understanding of anything”

          No joke. One full day between the first day of the new Congress and the run off.

          Bigoted fool thinks they can pass “a few” bills in one day.

          1. You figure the House can’t pass bills during November or December?

            The superstition, street pills, bigotry, and rural water supply may be rotting your brain.

        2. “except which soup can you’ll choose today”

          You are being exceptionally kind here.

    3. But by the logic of the 9th Circuit, not passing it means that Congress has disapproved it, and the program must then be shut down as illegal.

      Heeey…. maybe you’re right here.

    4. DACA isn’t the same as “Dreamers.” That’s a sleight of hand they’ve been trying to use.

      But any kind of “pure amnesty” bills while opening back up the floodgates of illegal immigration aren’t going to be popular.

      1. That’s what’s killed all the previous “clean” Dreamer bills.

        If Democrats had bent just a little and added Universal E-Verify or some more enforcement to the bill, it would’ve passed 10 or 15 years ago. But “compromise” can’t be done….

        1. And then they could have just left that bit unenforced, like the “clean up the voter rolls” part of Motor Voter.

          1. “And then they could have just left that bit unenforced”

            Pretending to be in favor of enforcement but then not actually following up is the Republican approach to that particular challenge.

      2. “But any kind of “pure amnesty” bills while opening back up the floodgates of illegal immigration aren’t going to be popular.”

        Opening up the floodgates of people who were raised in America causes how many people raised elsewhere to come rushing in?

    5. President Trump wanted to sign a DACA bill in the first months of his Presidency. Pelosi refused to allow the President the optic of signing a bipartisan bill on imigration.
      Democrats treat illegals the same way they treat blacks. As a prop to advance their power. Not a real human.

      1. President Trump wanted to sign a DACA bill in the first months of his Presidency.

        Yeah. He loves it all. Which is why he rescinded the program. Trump wasn’t going to sign anything that didn’t give him his wall and a lot more.

        You can choose to believe what he says, but it’s a poor choice.

        1. ” give him his wall and a lot more”

          So? A wall only costs money. Government has a 5 trillion deficit this year, $25 billion doesn’t matter.

          1. Tell him to get it from Mexico, like he said he was going to. Won’t need an appropriation then.

            Brett knows how to do it.

            1. He could have got it from Mexico, too, with a bit of legislation. A tax on remittances would have accomplished that.

              1. “He could have got it from Mexico, too, with a bit of legislation.”

                If Donnie can’t get legislation passed in the United States, what made you think that he could do better in Mexico?

          2. “A wall only costs money. Government has a 5 trillion deficit this year, $25 billion doesn’t matter. ”

            It also requires seizing private property and achieves literally nothing. Spending $25 billion to accomplish nothing is a spending plan only a Republican could love.

        2. One might be cynical about both his professed support for a DACA Bill and about his objective in the recision of his predecessor’s EO. But it doesn’t detract from the fact that the EO, as promulgated, was beyond the authority of a President.

          1. ” the EO, as promulgated, was beyond the authority of a President.”

            Very likely true. Which makes Trump’s inability to get it undone look so staggeringly incompetent.

      2. “President Trump wanted to sign a DACA bill in the first months of his Presidency. ”

        Not badly enough to do the work of actually writing one, or getting his party to vote for one.

    6. Already happened. Repeatedly. Been rejected repeatedly as a “clean bill.”
      Needs to be more comprehensive in terms of enforcement in order to get it through.

      https://en.wikipedia.org/wiki/DREAM_Act#2009

      1. The problem with immigration enforcement is that Congress won’t authorize enough immigration judges to hold enough deportation hearings to make a dent in the illegal immigrant population. Any “immigration reform” that doesn’t add immigration judges is doomed to failure, with or without Mitch’s help.
        For the R’s in Congress, it’s about posturing for the base. They were given a chance to deport more illegals, with Obama actually asking them for authority to deport more. But they campaigned against Obama, and successfully sold an “Obama lets illegals come here and does nothing to stop it” line of bullshit to the suckers, who still believe it. So they couldn’t let him get away with actually doing something to reduce illegal immigration, and they didn’t even bother to hold a hearing to debate whether or not to hire more immigration judges so they could hold more deportation hearings. So laugh directly at any Republican Congressman or Senator who was in office in 2015 who talks about getting tougher on immigration and also mock anyone who complains about how the Democrats won’t do anything about immigration enforcement.

      2. ” Been rejected repeatedly as a ‘clean bill.'”

        so put it in a “must pass” bill. Something that Republicans want. Like, say, the military appropriation bill.

    7. With a greatly reduced majority, you’re assuming your wishes and dreams are possible.

      1. “With a greatly reduced majority, you’re assuming your wishes and dreams are possible.”

        The majority is reduced approximately 0% and will remain so until the new Congress is seated in January.

  5. Who authorizes the unlawful entrants to be employed by the Attorney General? Doesn’t he have to go through the normal civil service processes? The language of the statute doesn’t obviously allow him to employ these immigrants in his private capacity.

  6. Rarely has something so humane and correct been derailed by such hideous bigotry, cruelty and political cynicism. I certainly hope your analysis prevails, Professor.

    Trump’s attempt to undo DACA was defeated by incompetence. I don’t see that happening in a Biden Administration.

    1. DACA for real border security could still be passed. Dems want an issue, not a resolution.

      Maybe the issue isn’t as strong as they think though.

      https://www.krgv.com/news/republicans-make-big-gains-in-the-rio-grande-valley

      1. DACA does not involve border security. Unless you think children who have lived their lives here and consider themselves American should be chucked back over the fence due to being brown and having parents from somewhere else.

        Cruelty is your stock in trade of course.

        1. Like Hell DACA doesn’t involve border security. You think border security is unrelated to giving anybody who’d illegally immigrate hope that they could get legal status for their children if they can sneak in and remain uncaught long enough?

          It’s like saying money in the bank is unrelated to the need to have guards and lock the vault at night.

          1. You are a reprehensible bigot, Brett Bellmore. A birther and a Trumper. A white supremacist and an obsolete clinger. A backwater yokel. The only thing you have to offer your country is dying off so that you can be replaced by a better, younger American in our electorate.

            You will be replaced. By your betters. Your political preferences will be stomped by your betters. What makes America great is that our vestigial bigots don’t win, not over time. You are destined to be a deplorable loser.

            1. Being called a bigot by the likes of you is a badge of honor.

              1. You’ve internalized your shame, and trumpet it as if it were a virtue. You truly ARE a Trump man!

      2. “DACA for real border security could still be passed. Dems want an issue, not a resolution.”

        Or maybe they know that border security, or lack thereof, is of little relation to the real problem of illegal immigration. The problem there is people who are legal when they get here on a lawful visa, but don’t go home when their visa expires. A border wall doesn’t stop airliners from flying over it.

      3. “DACA for real border security could still be passed. Dems want an issue, not a resolution.”

        But Republicans, in general, will reject any border security as inadequate, even if it included anti-personnel mines and laser-guided rattlesnakes.

  7. DACA is unconstitutional if it does anything, if it does nothing other than stop discretionary deportations, no one should have standing to challenge it.

    That is it.

    1. “DACA is unconstitutional if it does anything”

      Except that the federal government is given the explicit power of determining methods of naturalization in the Constitution.

  8. I wish Prof. Somin would cite the statute upon which he relies to assert the “permit[ed] employment of aliens who are ‘authorized … to be employed … by the attorney general.’ ”

    From the linked article he seems to refer to the Immigration Reform and Control Act of 1986. However, unless it has been amended to grant this discretion, I find no such provision therein.

    While citing a government Website for legal authority is risky, nothing at
    https://www.uscis.gov/working-in-the-united-states/permanent-workers
    seems to support this. Rather, it still seems to require the long-standing labor certification by the Department of Labor. Thus, I am presently unpersuaded.

    For the record I support the objective and parameters of the DACA policy. However, this is within the sole jurisdiction of Congress. Such a Bill had bipartisan support and was close to approval a number of years ago; it seems incredible, especially considering the political benefit from it to all political parties, why it cannot be pursued again.

    1. ” Such a Bill had bipartisan support”

      If Democrats are two parties now.

  9. Better, of course, would be for Biden to take the issue to Congress and let them do their jobs. And if, despite his desires, Congress declines to pass DACA, well, that’s their prerogative.

      1. Don’t be foolish. We all know how the Senate is going to play this.

        1. I wish to await a couple of election results from Georgia before predicting how the Senate will play anything. If Democrats take two seats, the Republicans will be naked, cold, wet, and stranded in the wilderness. You figure Democrats would be inclined to be magnanimous to a bunch of intolerant, ignorant, reckless clingers who would lack the votes to stop just about anything?

    1. Congress has basically stopped exercising its prerogative. That’s not unique to DACA and it’s not good for the country, but we’d be pretty screwed as a society if we relied on Congress to solve problems at this point.

      1. No, we’re screwed because we keep thinking that anyone in government can solve our problems. Congress (or even just the Senate) disagreeing with the Executive branch over priorities is a feature, not a bug.

        1. “No, we’re screwed because we keep thinking that anyone in government can solve our problems.”

          No, we’re screwed because so many people keep voting for people who don’t believe the government can do anything to succeed and who then go on to prove it as soon as they work for the government.

      2. We are more screwed if we let the executive seize more power because the legislature isn’t doing what the executive wants.

        1. Well, we’re more screwed, because that is exactly what every president has been doing since Woodrow Wilson. And the only pushback comes from the congressional delegation of the opposing party.

    2. “Better, of course, would be for Biden to take the issue to Congress and let them do their jobs. And if, despite his desires, Congress declines to pass DACA, well, that’s their prerogative.”

      Tie DACA passage to passage of the military budget, and see if some of the Congressional Republicans don’t suddenly recall how important it is to deal with this issue.

  10. Prof. Somin sophistry is in support of adding millions of Democrat voters. He wants the US to become a permanent one party state.

    1. I don’t think he wants that. He just wants to share the good in America so much, that he doesn’t care that he’s going to destroy it.

      Like somebody who lucked out by being picked up by a lifeboat, so eager to save everybody still floating in the water that he’d sink the lifeboat, and still think he’d done the right thing.

      1. Having looser restrictions on immigration has never destroyed this country in the past, and will never destroy it in the future. Prof. Somin and others have made very persuasive and detailed arguments about this over the years. You’re perfectly welcome to disagree, but to me your arguments are neither persuasive nor detailed.

        1. At founding, the requirements to immigrate to the United States were A) find a way to get here, and B) don’t be sick when you get here.

  11. How long have the Dreamers been waiting for a path to citizenship? A lot longer than Cuban immigrants had to wait when Republicans gave them their 1-year Cubans-are-special privilege.

    Time to make it up to the Dreamers. Let the House pass a decree, making all the dreamers U.S. citizens as of the moment Biden signs the bill. Let the Senate kill that bill. Then talk it over in Georgia, during the run-up to the special elections.

    But don’t make it merely symbolic. If they get control of the Senate, Democrats should make the Dreamers citizens. The Dreamers have already been on the path to citizenship long enough.

    1. They’ve done it before. Multiple times. Why do you think today is different?

  12. How long have they been waiting for a path to citizenship?
    They have citizenship. Just not US citizenship.
    How about this: If dreamers are here through no fault of their own, then it stands to reason that it is through the fault of someone else.
    To be eligible for citizenship they must assist the government in deporting those responsible for the dreamer’s unlawful presence. Sucks to have to rat out your parent, or other family member, but if someone gets a free pass for being a minor, then someone else gets the punishment.

      1. Not nearly as monstrous as encouraging human trafficking of children.

        1. That’s not what illegal immigration is.

          The lengths people will go to dehumanize.

          1. I’m impressed by the depths of your denial on this. Sure, not every child crossing the border illegally is trafficked, but enough of them are.

            And, where’s the dehumanization?

            1. Your formalism won’t work here. Why don’t you think illegal parents are being charged with trafficking?

              Think about that, and then maybe shut up with I’m in denial because I don’t much like Gasman’s proposal of forcing a terrible choice on these human beings.

              1. Because the parents of the children actually being trafficked are back in their home countries. Seriously, do you think everybody who shows up at the border with a kid, and says they’re the kid’s parents, is telling the truth?

                Paternity testing says that it’s frequently a lie. Kids are being traded around, even kidnapped, because showing up with one improves your chances of not getting sent back.

                1. Wow! I suppose you have some supporting evidence for this? What percentage of adults show up at the border with kids that aren’t theirs? Who is doing this paternity testing? I suspect you are shooting from the hip here, but I really would be interested in any links you could provide.

                  1. “What percentage of adults show up at the border with kids that aren’t theirs?”

                    Well, a number LEFT the border WITHOUT kids they claimed were theirs. Now the Trump Administration can’t find the parents.

                2. “Paternity testing says that it’s frequently a lie.”

                  Motherhood is a fact. Fatherhood is a strongly-held opinion. Catch some daytime TV if you need more evidence to the fact that mothers often incorrectly identify the father(s) of their children.

                3. “Because the parents of the children actually being trafficked are back in their home countries. ”

                  At least, that’s the assumption of the Trump administration, which had to publicly admit that they’d seized a bunch of kids seeking asylum, separated them from the parents, and (oops) can’t find the parents now.

    1. You are a no-count bigot, Gasman, fortunate that your betters will be magnanimous in dealing with you.

      Enjoy the rest of the culture war, clinger. I know I will enjoy shoving progress down your whimpering right-wing throat.

  13. I would support allowing illegal immigrant children to become legal residents. But no path to citizenship, ever. If they want to be citizens they can go back to the country they are citizens of and apply legally. I would only support this for children that have been here for more than five years and would require ALL other illegal immigrants to be deported upon any encounter with law enforcement where they are suspects or perpetrators of a crime (not for victims of crimes unless they came to the attention of the authorities in another way).

    Otherwise all were doing is telling people that its okay to flout the laws of our country. Unless its okay to ignore whatever malum prohibitum laws we want with no consequences.

    1. “I would support allowing illegal immigrant children to become legal residents. But no path to citizenship, ever. If they want to be citizens they can go back to the country they are citizens of and apply legally.”

      Meh. They grew up as Americans. Some of them thought they WERE Americans.
      “Send them back to a country they’ve never known!” just sounds like cruelty for the sake of cruelty.

      1. No. Shoot them at the border is ARGUABLY cruel.

        But only arguably.

        1. I think I prefer sharing the country with them over sharing it with you.

  14. The way forward is comprehensive immigration reform. Something like the Comprehensive Immigration Reform Act of 2007.

    It’s shameful to see Presidents try to circumvent Congress and make law with executive orders. It will be equally shameful for Biden as it was for Trump as it was for Obama.

    1. But as long as it’s something Ilya really wants, he’s cool with it.

      1. Bad faith everywhere but you, eh Brett?

        1. He knows Presidents don’t have the constitutional authority to do this, and he’s still fine with them doing it.

          Ilya prioritizes open borders over EVERYTHING. Including the rule of law.

          1. Thank god you are here to tell us what Prof. Somin knows. For me, I just base it on what he actually writes, like the above post where he makes clear which part of DACA he believes is constitutionally shaky.

  15. “A Simple Way to Help Protect DACA Against Legal Challenges”

    How about complying with the law passed by congress?

    1. There’s a problem with that: Congress has passed two, mutually exclusive laws. #1, the President is supposed to deport all the people who enter the country illegally or stay in it after they’re legally required to go. But #2, Congress set a limit on how many immigration judges the President can hire, which limits the number of people the President can deport.

  16. “which failed to pass Congress… [SCOTUS] sidestepped the issue of whether DACA was legal in the first place… institutionalize DACA would be for Congress to pass legislation to that effect”

    The ONLY way DACA should be considered is if Congress passes a law stating as such. Period. Stop giving the president more power, and then having the fucking nerve to complain when the “wrong” president tries to use that power for something as dastardly as deciding that EO has no power anymore. “Congress can’t [by norms] pass a law binding future legislatures, but Democrat president totally can bind future ORANGEMANBAD, because double standards.”

    1. “Stop giving the president more power, and then having the fucking nerve to complain when the “wrong” president tries to use that power for something as dastardly as deciding that EO has no power anymore.”

      Yeah, if the President decides to screw someone, they should STAY screwed, even if the guy in the job changes.

      Bottom line: If Congress wants the President to deport everybody who is legally removable, they need to step up and pass a law authorizing hiring enough immigration judges to give ’em all hearings and kick ’em out. If they don’t do that, they (and you) don’t get to complain that the President has only deported as many people as Congress has authorized.

      1. They have passed bills to do that and have spent tons of money.

        But, it’ll be fun watching people have kittens about states deciding to ignore all gun laws. Sanctuary and all.

        1. You are gloriously wrong, and apparently proud to remain so.

  17. I thought that governing by executive fiat was bad. Oh, right, new party in charge, all arguments have switched. If they want to have a DACA that is immune from future Presidents changing their mind, they need to pass an actual law about it. All of this governing with a phone and a pen was bad under Obama, is bad under Trump, and will be bad under Biden. Biden shouldn’t add to it but return to the rule of law.

    1. The “governing with a phone and a pen” was a reference to being able to call Congressional leaders and get bills introduced, passed, and presented. There’s nothing wrong with any of those things.

      1. I’d argue you’re either a moron or a liar…but them I decided to embrace the power of the word “and”

        1. So you’ve decided I’m just like you. That’s so… touching.

  18. This issue is easily resolve: deport them all.

    1. Sure thing. since we have a fixed number of deportation hearings available, the practice has been to show several categories of illegal immigrants to the front of the line for a deportation hearing. Those categories are recent arrivals, repeat deportees, and convicts. Which of those categories gets to stay because you gave their deportation hearings to DACA kids?

      1. Stop pretending, Pollock. It’s abolition of due process that Stansfield wants. They look Mexican? They’re gone.

        1. First hint: The DACA kids aren’t all Mexicans.

  19. The easiest and hardest fix for DACA is a Congressional vote. This is what SCOTUS would like, this is what President Elect Biden would like, and this is what the American people would like. Just vote on it up or down. But this would mean taking a vote and putting people on record and Senator McConnell does not want his people on record. So the poor Dreamers are stuck and are dependent on a friendly President and an executive order. Is this anyway to run a country?

    1. Mitch gets his power by not doing things. Amazingly, this gives him a very powerful incentive to not do things.

Please to post comments