There’s a saying they teach in law school: “Hard cases make bad law.” The current debacle over DACA demonstrates the inverse: Bad law makes hard cases.
And DACA is bad law.
President Obama, whose administration established the Deferred Action on Childhood Arrival program on June 15, 2012, had previously -- and correctly -- said (nearly two dozen times) that only Congress has the power to write immigration law. Obama then issued an executive order exempting hundreds of thousands of people from the law. This was an unconstitutional violation of the limits on presidential power, as Republican lawmakers, numerous commentators and even members of the federal judiciary stated thereafter.
That said, the real blame must be laid at the feet of Congress, which has done nothing about our immigration problems for decades.
In 1986, Congress passed the Immigration Reform and Control Act, granting “amnesty” to approximately 2.7 million people then in the United States illegally. But the Act imposed neither immigration “reform” nor “control”; we were promised that border enforcement would be ramped up.
Today, more than four times that number -- more than 11 million people -- are estimated to live in the U.S. illegally.
One reason Congress has stalled on any immigration overhaul is because Democrats insist upon what they call “comprehensive immigration reform,” which translates to “amnesty for everyone now; fix the border later.” But Americans who remember 1986 won’t fall for that again. Republican lawmakers know that they can kiss their seats goodbye unless immediate border enforcement happens in any law granting amnesty to those here illegally.
Under the Obama administration, the GOP whined that they couldn’t pass immigration legislation because the president would veto it, and they didn’t have the votes needed to override a veto. Now with a president hollering for legitimate immigration reform, the GOP reveals the squish where their spine should be. Oh, no! The left might call us nasty names!
Unsurprisingly, the left is up in arms about Trump’s revocation of the Obama administration’s DACA program. But millions of people who don’t identify as Democrats or progressives are just as incensed. Public sympathy for “Dreamers” is understandable. Most truly have known no other country as home, had no part in the decision to migrate here, and were brought in as children. Many have siblings who were born here and thus are U.S. citizens. Deporting them looks like victimizing innocent people to score cheap political points. It’s cruel and stupid. It’s also a public relations nightmare for a party that has already shown little aptitude for countering deceitful media narratives about “Nazis” and “white supremacists.”
The good news is that Trump’s announcement created a six-month window prior to enforcement. This gives the GOP its chance to remedy many of the problems that plague our immigration system, at minimal political cost.
Congress should immediately rewrite our immigration laws to (amongst other things) end chain migration, provide sufficient resources for border enforcement, deport everyone here illegally who has committed a serious crime, enforce prohibitions against receipt of welfare, deprive “sanctuary cities” of federal funds and make clear that anyone who crosses the border illegally from here on out will be subject to immediate deportation. They can then grandfather in those originally covered by DACA, exempting them and family members already here from deportation, and give them a clear path to legal status.
This option offers significant political advantages:
First, notwithstanding what Congress does, Trump can honestly tell his base that he lived up to his campaign promise.
Second, Congress reasserts its legitimate authority over immigration legislation.
Third, Trump’s opponents among the GOP in Congress get to claim both constitutional integrity and the moral high ground. They can simultaneously oppose Obama’s usurpation of Congressional power, condemn Trump’s revocation of DACA, enact a DACA-esque policy legislatively and look like heroes.
Fourth, such an approach would make it much more difficult for the left to oppose the other aspects of immigration reform. Are they really going to argue to the American public that criminals, gang members, drug traffickers and multiple deportees like Juan Francisco López-Sánchez (who killed Kate Steinle) deserve the same sympathetic treatment as a straight-A high school student headed to college, or a hardworking 30-something who has never had a run-in with the law in his or her life?
Fifth, even if Trump decides to veto such legislation, it’s a win. The GOP and Democrats can override the veto. And in that case, Trump sticks to his guns, Congress is magically bipartisan, DACA recipients can stay, criminals get deported, sanctuary cities are defunded and the border gets closed.
Neither side would get everything they want. But it’s far superior to the current state of affairs. And it’s probably a once-in-a-lifetime chance to fix our broken immigration system.
Now let’s see if Republicans have what it takes to do it.