September 3, 2017

Trump between a rock and a hard place on DACA.

by Hal Gershowitz

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Of Thee I Sing Heading AuthorsHoisted on his own petard.

First some history. In 2001 Sen. Orrin Hatch (R-UT) and Sen. Maria Cantwell (D-WA) introduced legislation to give legal status to undocumented children (who were brought here by their undocumented parents), which we now know as the DREAM Act. However, the DREAM Act just couldn’t muster the 60 votes needed to break a filibuster in the Senate. But for the obscure and esoteric rules of the United States Senate, we wouldn’t have a DACA crisis today.

Once again, in December of 2010, both houses of Congress, Democrats and Republicans working together, voted for legislation that would have given legal status to undocumented children so that these young men and women could go to school, get a driver’s license, serve in the military and otherwise contribute to the vitality of the country. Very few of these boys and girls even knew they lacked legal status. On average, these children were about six-and-a-half years of age when they were brought to the United States. They had the temerity to think they were Americans and they behaved like Americans—good, law-abiding Americans who got into trouble with the law at a significantly lower rate than their native-born peers.

Unfortunately, the bi-partisan legislation, again, failed to achieve the 60% vote required by Senate rules, and these young people have been in limbo ever since. Eight hundred thousand of the estimated 1.3 million undocumented young men and women have applied for and been given temporary legal status by the Deferred Action for Childhood Arrivals (DACA) program that former President Obama put into effect by executive order in 2012.  It was an intelligent, humane and presidential act by Obama.

When candidate Donald Trump was campaigning for the presidency he made quite an issue of the nation’s immigration quagmire.  Decades of deliberate government leniency and considerable neglect had resulted in millions of residents who have no legal status here in the United States—an estimated 11 to 12 million to be (almost) exact. Slightly over 10% of these undocumented residents were brought here as children. They were raised here, many know no other country, some speak no other language and often have no knowledge or recollection of the country from which they were brought here. What a juicy target for demagogic politicians.

Enter candidate Donald Trump.

Candidate Trump railed against the undocumented residents living here.  And, truth be told, they were fair game. They were after all undocumented (a euphemism for illegal). But candidate Trump, sensing a vast sympathetic swath of the American electorate really poured it on. They were not merely undocumented they were, as implied by Trump, largely murderers, rapists, robbers and all manner of evil doers, while some, he allowed, were probably normal human beings.

To his credit President Trump, once in office, tempered his vitriol toward the undocumented children, and deferred any action to rescind DACA. But President Trump has now been hoisted on his own petard. A gaggle of Republican Attorneys General, in effect, have issued an ultimatum that unless President Trump rescinds DACA this week, they will file suit in Federal court to force the issue, and they probably have a viable case. They will ask a federal judge who already ruled that one Obama-era deferred action program is unconstitutional (the Deferred Action for Parents of Americans program, or DAPA, which was stopped before going into effect in 2015) to do the same for DACA.

It appears that the Trump administration is maneuvering to give the president more time to decide what to do with DACA. Here’s the President’s dilemma. In addition to the question of whether or not to fight the states in court to protect DACA, Trump has to figure out what to do with the program.

It probably can’t continue as it is. President Trump could compromise by declaring that people can keep their current work permits, but no new DACA applications will be considered. That would preclude youngsters who are currently 15 years of age or younger from protections (they were not included in DACA), as well as the hundreds of thousands more who might be eligible but never applied.

So, then, one might ask what happens when DACA recipients’ current two-year work permits expire in the months ahead.  Good question.  We don’t know.  No one does.

President Trump could, theoretically, allow current DACA recipients to renew one more time to give Congress time to pass legislation rectifying the problem. Or he could set a deadline after which no new DACA renewals would be approved. That would mean that thousands of youngster would, once again, find themselves in limbo.

It’s a mess. If DACA is terminated immigrants would have to leave their full-time jobs in order to comply with the law or continue working illegally. While those who are in school might be able to remain, they would probably have trouble retaining their financial assistance, and, of course, they probably couldn’t apply for jobs once they graduated.

Then there is the matter of the extensive personal information DACA applicants gave to the government when they applied. They could now be easily tracked down, arrested, and placed in deportation proceedings once they no longer had DACA protection. DACA information had been protected from ICE agents by privacy regulations, but President Trump relaxed those restrictions as soon as he was inaugurated.

Should DACA be terminated, former DACA kids could continue to live as they had been living with DACA although they would then be in real risk of deportation.  As we said earlier.  It’s a real mess.


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One response to “Trump between a rock and a hard place on DACA.”

  1. bonnie joseph says:

    hal, do you have a preferred solution? I have a long term vested interest. my father, in 1923 sneaked in through Canada after not passing the test necessary to get in at ellis island. he came from bobroysk, near minsk, near pinsk. he was 13. I do have a birth certificate but you know these republicans do challenge even that. I, like so many others, feel our family has contributed to the well being of our country.

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