HAMILTON: Trump, The Dreamers, And The Cognitive Dissonance On Upholding Immigration Law

DACA is unconstitutional and Trump's implicit promise to resurrect it would be truly problematic

Earlier this week, President Trump fired a shot at the Democrats for not acting in the interests of the young adults protected by the recently-rescinded Deferred Action for Childhood Arrivals (DACA) program, commonly referred to as the "Dreamers."

This tweet represents the president's pivot toward seeking a resolution on immigration law that remains deadlocked in Congress over a series of seemingly conflicting political ends. For the Republicans and the Trump administration, they seek to construct the vaunted "wall" on the southern border as well as ending policies like chain migration and the diversity visa lottery (dictated in Immigration and Nationality Act [INA] § 203(c)). In contrast, the Democrats would prefer to enhance the protections given to the Dreamers under a policy implemented by former President Barack Obama in 2012. As a result, the legislative and executive branches remain at an impasse and the president seems interested in making a deal.

According to USA Today, Trump alluded that he would be interested in keeping protections for DACA recipients as long as the Democrats would be interested in meeting his policy goals. To quote the president, "If we have support from the Democrats I think DACA is going to be terrific." While Trump's desire to reach some deal of compromise represents a shift from the Obama administration's general desire not to reach across the aisle, the president fails to realize that softening on DACA recipients runs afoul of the policies that not only he ran on as a candidate but also the policies that he has implemented since his inauguration with regard to upholding the rule of law. Why is that? DACA represents everything that Trump has chastised since the beginning of his political life.

To understand the context of Trump's cognitive dissonance, it is important to outline what DACA was. Back in 2012, Congress failed to pass the DREAM Act, which would have provided a gateway for young teenagers and adults who entered the United States without inspection as children to acquire conditional residency and to follow a pathway to citizenship under a specific set of circumstances. Upon its failure, Obama's Department of Homeland Security (DHS) issued a memorandum outlining the desire to exercise prosecutorial discretion on illegal aliens who fulfilled the following criteria:

  • came to the United States under the age of sixteen;
  • has continuously resided in the United States for a least five years preceding the date of this memorandum and is present in the United States on the date ofthis memorandum;
  • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces ofthe United States;
  • has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
  • is not above the age of thirty.

In the realm of law enforcement, prosecutorial discretion is best described as the authority of law enforcement agencies or officers (e.g., assistant district attorneys, Assistant United States Attorneys, DHS attorneys, etc.) to decide what charges to levy or how to pursue an individual case on the basis of the totality of the circumstances. It is generally utilized when an office lacks unlimited resources and seeks to resolve a criminal issue in a manner that would instead prioritize more prevailing and serious matters. Such discretion is necessary in the criminal justice system because it would otherwise function inefficiently if every single offense is treated under equitable circumstances.

The problem with DACA, however, is that instead of applying prosecutorial discretion to each individual case and giving law enforcement officers an ability to make a calculated judgment on a case-by-case basis, DHS offered a blanket policy that gave amnesty to an entire subset of individuals living in the United States who violated our sovereignty. Furthermore, DACA not only provided a 2-year deferment on removal proceedings for those fulfilling the aforementioned criteria, but it also authorized the issuance of work permits to those "Dreamers." Congress never provided the executive branch the ability arbitrarily determine who gets issued such permits. Hans A. von Spakovsky of the Heritage Foundation expounded on this last September:

[Obama] put DACA in place to provide pseudo-legal status to illegal aliens brought to the U.S. as minors, including as teenagers. He promised them that they wouldn't be deported and provided them with work authorizations and access to Social Security and other government benefits.

And he did this despite the fact that the immigration laws passed by Congress do not give the president the ability to do this. Indeed, Congress specifically rejected bills to provide such benefits.

As Attorney General Jeff Sessions pointed out this week, DACA "contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences." Since most DACA beneficiaries are now adults, "it also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens," Sessions said.

Interestingly, the Fifth Circuit Court of Appeals also ruled that such a program was unconstitutional when it ruled that Obama's second mass amnesty program, the Deferred Action for Parental Arrivals (DAPA), violated the United States Constitution. In a 2-1 decision in 2015, the Court held the following:

The interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility. Even with "special deference" to the Secretary, the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.

Presumably because DAPA is not authorized by statute, the United States posits that its authority is grounded in historical practice, but that "does not, by itself, create power," and in any event, previous deferred-action programs are not analogous to DAPA. "[M]ost . . . discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters," but DAPA is not such a program. Likewise, many of the previous programs were bridges from one legal status to another, whereas DAPA awards lawful presence to persons who have never had a legal status and may never receive one.

Tex. v. U.S., 809 F.3d 134, 184 (5th Cir. 2015).

A year later, the Supreme Court issued a one-lined per curiam opinion that affirmed the Fifth Circuit due to a 4-4 split. Thus, DAPA remains unconstitutional. Since DAPA's "legal" premise remains the same as that of DACA, DACA's existence came out of an unconstitutional breach of executive authority that was not dictated by our federal immigration law.

Since DACA runs afoul of both constitutional and federal law, it would suggest that the president's long-standing policy of seeking to protect the interests of the rule of law would still apply to DACA. Given Trump's recent statements that imply that a de jure Dream Act could be implemented in exchange for the "wall," reform to the Diversity Visa Lottery, and to curb chain migration, it represents a significant break from the Trumpian rhetoric that helped secure the Republican nomination and subsequently the presidency. It does not serve the proper interests of the same Trump administration that nominated federal judges dedicated to what the law is to suddenly provide amnesty to those who had previously been protected under a facially unconstitutional program.

Daniel Horowitz of Conservative Review explained the danger of punting the proper enforcement of federal immigration laws to provide amnesty for the Dreamers last December:

Let’s be very clear. Amnesty for illegal immigration is never a “permanent solution.” Each time Congress grants amnesty, it encourages a new wave of illegal immigrants to flood to the United States. If Congress agrees that there is a blanket entitlement for children who came here illegally now to become citizens, what about the next wave of illegal immigrants who bring children here? Will they be entitled to amnesty too? How could you possibly argue against it when you’ve done it once before?

Then what about the parents? Are we going to grant amnesty and citizenship to “Dreamers” and then “break up families” by refusing to do so for their parents? The argument for amnesty and citizenship for all illegal immigrants necessarily follows from giving DACA recipients amnesty and citizenship.

This is fundamentally unjust. There are people from every corner of the Earth who try to come to the United States legally. They follow American law. They respect American law. And their place in line is being cut in favor of groups of people who have no respect for American borders or American laws.

Trump's desire to follow this particular path will instantly backfire. If Trump's plan fails to materialize and he fulfills the promise he tweeted last September, then do not expect his base to rally behind him or for the Republicans to retain any of the majorities in either the House of Representatives or the Senate.

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