Opinion

Rescind DACA the Right Way

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Posted: Jul 15, 2020 12:01 AM
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Rescind DACA the Right Way

Source: AP Photo/Patrick Semansky

The Supreme Court recently ruled that the Trump administration cannot move forward with its previous plan to end DACA, the Deferred Action for Childhood Arrivals Program. Chief Justice John Roberts called the administration's attempted 2017 rescission of the program "arbitrary and capricious" in his 5-4 majority opinion.

But the only thing "arbitrary and capricious" is the ruling itself. DACA was illegal from its inception -- something the Court even implied, yet refused to take into account. Instead, the Court chose to focus on whether the administration had properly justified the attempted rollback, as supposedly required by the Administrative Procedure Act.

The majority's reasoning is beyond shoddy. As Justice Clarence Thomas correctly noted in his dissent, blocking the rollback of an illegal program on a technicality is nothing more than "an effort to avoid a politically controversial but legally correct decision."  

Thankfully, all nine justices agreed that the administration has the authority to roll back the program, provided it explains its reasoning. And President Trump has already promised to do so. This time, let's hope his administration dots its I's and crosses its t's.

In 2012, President Obama created DACA via an executive memorandum. It prevents the deportation of nearly 700,000 illegal immigrants who arrived in the United States as minors. It also grants these individuals -- most of whom are now adults -- work permits and government benefits.  

In 2016, Donald Trump campaigned on ending DACA. And in September 2017, he issued his own executive order rolling back the program, after his attorney general concluded it was illegal.

Numerous legal scholars have reached that same conclusion. Consider the analysis of one former Harvard Law Review editor and constitutional law professor who concluded that the idea that a president "can just suspend deportations through executive order, that's just not the case," he noted.

That former professor, of course, was none other than Barack Obama himself, speaking in 2011. The president can't "just bypass Congress and change the law . . . That's not how a democracy works," Obama explained on a separate occasion.

Yet just a year after making those remarks, Obama caved to pressure from Democratic activists and rammed through the DACA program. He justified the flip-flop by claiming he wasn't permanently suspending deportations -- he was merely directing Immigration and Customs Enforcement to prioritize the removal of adult illegal aliens who deliberately broke our laws.

Presidents do have the authority to tweak ICE's priorities, but they can't give out hundreds of thousands of work permits to people who, by law, are not eligible to receive them.

Indeed, Chief Justice Roberts noted that DACA isn't a mere question of executive discretion -- as Obama claimed -- since the "benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy." He even strongly implies that DACA's work permits are unlawful since only Congress can grant legal status and work eligibility.  

Nevertheless, he blocked the rollback on the grounds that the administration explained its rationale for suspending work privileges, but didn't adequately explain its decision to reverse Obama's policy on deferred deportations.

Taken to its logical conclusion, Robert's opinion would prevent any administration from reversing its predecessor's policies -- even if they're illegal -- unless it provides a rationale in excruciating detail.

The majority opinion is nothing more than legal gobbledygook. Unfortunately, at least for now, it leaves in place a program that continues to harm American citizens.

Thankfully, the president has pledged to try again. That's the only way to follow through on the promise he made in 2016 -- to always put American workers first. At a time when 21 million Americans are searching for work and another 10 million part-time employees are looking for full-time jobs, there's no justification for an amnesty that offers lifetime work permits to hundreds of thousands of illegal aliens while the American people -- in this case, particularly minorities and legal immigrants -- are left standing in the unemployment line.

Yes, our immigration system is broken. Congress is woefully delinquent in fixing it. Until they do, the rule of law and the interests of American workers must prevail. Many DACA recipients have sympathetic stories. But letting them stay and work -- without even discussing related policies such as mandatory nationwide E-Verify -- would be terrible policy. It would do nothing to secure the border, prevent illegal hiring, or end chain migration. And it would only encourage future amnesties.

Americans can't afford to continue with an immigration system that was designed to benefit employers looking for lower-wage workers. One in four U.S. workers has filed for unemployment benefits since the pandemic began. Millions more have seen their hours cuts. And there's little end in sight -- the Federal Reserve estimates the unemployment rate will remain above 9 percent until at least 2021.  

American workers need all the help they can get. President Trump can overcome this setback with a new-and-improved plan to end DACA.

Bob Beauprez is a former United States Representative, representing Colorado's 7th congressional district from 2003-2007.