There's an Easy Solution to Trump's Threatened Cancellation of DACA. Is Congress Capable of Governing?

Posted: Sep 05, 2017 10:20 AM
There's an Easy Solution to Trump's Threatened Cancellation of DACA. Is Congress Capable of Governing?

If various news reports are to be believed (update: new details are emerging), the White House will announce today that after a six-month delay, President Trump will rescind his predecessor's executive action known as Deferred Action for Childhood Arrivals (DACA), which provides temporary and indefinite relief from the threat of deportation to a subset of illegal immigrants who were brought to America as children.  There are rumblings that administration officials are still warning that early reporting over the weekend may not fully reflect the president's final decision on the matter (see the update above), but let's assume for the sake of this analysis that the broad strokes have been accurately conveyed.  Here are the alleged details, via Politico's Eliana Johnson:

President Donald Trump has decided to end the Obama-era program that grants work permits to undocumented immigrants who arrived in the country as children, according to two sources familiar with his thinking. Senior White House aides huddled Sunday afternoon to discuss the rollout of a decision likely to ignite a political firestorm — and fulfill one of the president’s core campaign promises. The administration’s deliberations on the issue have been fluid and fast moving, and the president has faced strong warnings from members of his own party not to scrap the program. Trump has wrestled for months with whether to do away with the Deferred Action for Childhood Arrivals... In a nod to reservations held by many lawmakers, the White House plans to delay the enforcement of the president’s decision for six months, giving Congress a window to act, according to one White House official. But a senior White House aide said that chief of staff John Kelly, who has been running the West Wing policy process on the issue, “thinks Congress should’ve gotten its act together a lot longer ago.”  White House aides caution that — as with everything in the Trump White House — nothing is set in stone until an official announcement has been made.

It's worth reiterating that the legal jeopardy faced by these "children," many of whom are now grown adults, is the fault of their parents, who brought them into this country in violation of our immigration laws. A follow-up Obama effort ("DAPA") -- which was thrown out by the judiciary as flagrantly unconstitutional -- offered similar protections for the parents of the so-called DREAMers, i.e. the adults responsible for the unlawful migration. So DAPA is out, but DACA still stands. For now. According to Politico's reporting above, Trump will give Congress six months to act on the issue before sun-setting Obama's program. Some thoughts: 

(1) Beyond their families' initial act, DREAMers' continued legal jeopardy can be laid at the feet of longstanding Congressional inaction, as well as President Obama. The 44th president issued his unilateral DACA policy in an election year, after previously asserting that he lacked the legal authority to do so.  “With respect to the notion that I can just suspend deportations [of immigrants brought here illegally as children] through executive order, that’s just not the case, because there are laws on the books that Congress has passed,” he said in 2011, before pushing forward with that unconstitutional move anyway, then overreaching even more egregiously with DAPA. Rather than leading on the issue and prioritizing immigration -- as he certainly could have in 2009 and 2010, when Democrats held large majorities -- Obama punted. He then revisited immigration in a series of highly controversial and legally-dubious actions designed to bypass the legislative branch during the "phone and pen" era of his presidency.  

Those of us who objected to this approach warned that abusing executive authority represented poor and instantly-reversible (and in some cases constitutionally-suspect) governance. The next guy could just swoop in and undo entire wide-ranging policies with a single stroke of the pen, we argued.  We were correct.  Rather than doing the hard work of brokering a serious compromise on Capitol Hill to resolve certain challenges with permanency, legitimacy and bipartisan buy-in, Obama opted for a risky shortcut.  This was short-sighted and irresponsible, at the very least.  If you're inclined to believe that Obama moved behind the scenes to scuttle Marco Rubio's legislative efforts on this front for political reasons, it was quite cynical, too.

(2) The vast majority of Americans favor some form of "amnesty" for the DREAMer class, drawing on well-founded compassion for people who illegally entered the United States at a young age through no fault of their own, and for whom this country has always felt like home.  Deporting law-abiding DACA-eligibile illegal immigrants would strike most Americans -- including most Republicans -- as an act of needless cruelty.  Much of the opposition to Obama's act was mounted on constitutional and process grounds; for the most part, it was not rooted in a desire to banish so-called DREAMers from the country.  I suspect the New York Times' Maggie Haberman may be onto something here:

"...that he ends it," she concludes.  It's well known that President Trump has a soft spot for DREAMers, as he stated himself shortly after his inauguration.  That's probably part of the reason why his administration has evaded this grenade for months, in spite of his campaign pledge to end the deportation relief regime (remember, despite including work permits, DACA is temporary and does not entail legal status).  But now Trump's hand is being forced, somewhat ironically, by a lawsuit from several state-level Republican Attorneys General.  This, from Allahpundit, seems right: "[The dilemma] place[s] Trump in a nasty political bind, forcing him to decide between defending Obama’s overreach in court and pissing off his base or canceling the program and being brutalized by the majority of the public that backs legal status for DREAMers. Left to his own devices, the president probably would have gone on quietly letting DACA operate. It’s Republican lawyers who forced this crisis, not him."  True enough, but here we are.  

(3) Addressing and solving this issue is the job of Congress, and Trump is giving them ample time to act before starting to dismantle Obama's executive policy.  And here's the thing: Any quasi-functional Congress would act.  The dynamics are now in place for both sides of the immigration debate to bank political "wins" while implementing broadly popular ideas, in tandem.  The American people support both protecting DREAMers and enhancing border security and enforcement.  The puzzle pieces required to forge a reasonable, constructive compromise are fairly obvious, as Yuval Levin lays out:

There is some real softness on this particular question (the ultimate status of the “dreamers,” not the constitutionality of Obama’s power grab) among a fair number of immigration restrictionists, including President Trump himself. But at the same time this is a particularly sensitive and important question for many immigration permissivists, including leading Democrats and some leading Republicans. So the restrictionists are willing to compromise and the permissivists are willing to pay a price. That’s a huge opening for a deal—an opening to trade some legal status for the “dreamers” for some modest but meaningful concession from the permissivists to the restrictionists. What kind of concession? It would need to offer a mirror image of the concession the restrictionists would be making, so it would need to be something the permissivists oppose in principle but could live with in practice but that at the same time most restrictionists consider very important as a substantive matter. The natural candidate is funding for the border wall President Trump wants. A deal like that would also resolve the looming budget impasse, which nearly everyone in Congress wants to avoid but which the president seems intent on marching into (and looks reasonably likely to fumble in his way). 

The mechanism for such a deal could be straightforward. The House already has wall funding included in its appropriations language for the coming fiscal year. It could add to the same bill something like the Corbelo-Tillis language (giving legal status to “dreamers” who meet certain conditions) and put it to a vote. Because the two sides of the immigration debate value the wall question and the “dreamers” question very differently, a deal could actually have real appeal to both sides while it keeps the government open. For those drawn to the approach to immigration that Trump ran on last year (presumably including Trump himself), such a deal would neutralize the opposition’s strongest political weapon, would shift the balance of who’s taking hostages in the budget fight and who’s offering a compromise solution, and would also pressure Democrats to help Trump keep a key promise that could reduce illegal border crossings—all in return for a policy change that many restrictionists consider justifiable. For immigration permissivists, it would formalize DACA and secure it with bipartisan backing while (for the Democrats among them) forcing Republicans to effectively legitimize an Obama action they opposed, and all in return for funding a construction project they detest for basically aesthetic and symbolic reasons.

Many Republicans support the DREAM Act, and many Democrats have signaled support for reform packages that entail substantially beefed-up enforcement measures. Sure, hardcore activists on both sides might howl, but this issue set seems nearly tailor-made for a mutually-acceptable resolution. Are our representatives capable of notching a popular, easy win? Don't count on it: 

On the Right, immigration restrictionists' sound and fury may dissuade members who fear being painted as abetting anything that resembles codifying an Obama "amnesty" program, with the specter of primary challenges forcing a signficant segment of Republican members into a defensive crouch. On the Left, as we've written previously, Democratic leadership will likely find it politically advantageous to indignantly reject any deal that might give Trump a victory on the wall (or even e-verify, another potential bargaining chip Levin mentions in imagining a potential compromise). Their base demands pure resistance, plus DREAMers represent a potent talking point in the wider immigration debate. Why move to actually solve a relatively narrow problem when that problem is so useful in whipping up your supporters, ginning up identity politics-driven grievance, and demonizing the other party?

The clear, fair, logical, responsible course of action here is to pass a permanent, formal fix to the DREAMer issue while simultaneously increasing immigration enforcement.  This would deal with current DREAMers fairly and humanely while preventing more unlawful border crossings in the future.  The politicized calculation, by contrast, is for Republicans to avoid tough votes on base-splitting issues ahead of a dicey midterm cycle, and for Democrats to refuse to play ball with Trump whatsoever. They could very well decide that it's in their interests to effectively dare the president to axe a popular Obama-era executive order, which would only hand them an even more effective talking point about a victim group harmed by the mean-spirited Republicans. Even some very conservative GOP members have begun making the case for a policy swap like the one described above, perhaps anticipating Schumer and Pelosi's next move: Screeching about the indignity of exploiting "children" as "bargaining chips" (while using those very same people as political pawns for their own partisan purposes, of course).

Frankly, if Democrats really want to jam Republicans, they'll beg Obama to follow through on his vow to "speak out" against Trump's impending cancelation of DACA. Thanks to our political culture of intense tribalism, the spectacle of Obama wading into this controversy would drive an even deeper wedge within the GOP, applying more pressure on the party to oppose whatever Obama says he wants.  Signaling and counter-signaling, as far as the eye can see.  The best political outcome for Democrats -- which is not synonymous with the best policy outcome for the newly-exposed DREAMers about whom Democrats profess to care so deeply -- is for Republicans to go to war with eachother over "amnesty." If the GOP's internal divisions blow up any possible deal before it gains any traction, Democrats could avoid looking like unflinching, uncompromising cynics who've turned up their noses at a fair offer. But even if Republicans can settle on a relatively united proposal, I still wouldn't be surprised to see the Democrats stiff-arm Trump, Ryan and McConnell anyway; after all, in their experience, they can count on the media to run interference on their behalf if a partisan blame game gets underway.  As usual, the "country over party" refrain is a one-way street.  In short, both parties have incentives to fix this problem, just as both parties have incentives to deflect and attack.  Will governance or partisanship prevail?  I'll leave you with these tweets, which highlight the profound shortcomings of unilateral presidential "legislating:"