It’s not much of a surprise that the Trump administration has decided to rescind DACA (Deferred Action of Childhood Arrivals), even though a majority of Americans support the program. Public opinion has not stopped the administration from attempting to dial back many Obama-era initiatives, including Obamacare and the inclusion of transgender soldiers in the military. But why now? First let’s try to understand DACA and the administration’s view of it.
WHAT EXACTLY IS DACA?
On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.
ANNOUNCEMENT TO RESCIND DACA
Attorney General Jeff Sessions announced today that the DACA program would be rescinded. His statement was blatantly partisan and included some rather questionable inferences.
“The DACA program was implemented in 2012 and essentially provided a legal status for recipients for a renewable two-year term, work authorization and other benefits, including participation in the social security program, to 800,000 mostly-adult illegal aliens.”
“Essentially provided a legal status for recipients” contradicts the Department of Homeland Security’s own statement that “deferred action does not provide lawful status”.
“Participation in the social security program” is ostensibly misleading. Most undocumented immigrants are not eligible for a Social Security number but are eligible for an Individual Tax Identification Number. An ITIN is a tax identification number issued by the Internal Revenue Service to foreign nationals in the United States that allows them to file and pay taxes. So undocumented workers DO pay taxes. Yet they do not receive benefits that an American-born or naturalized citizen receives. With an ITIN, individuals can take advantage of certain financial opportunities, such as applying for credit cards and obtaining loans. The social security card issued to “Dreamers”, those in the DACA program, states that it is “Valid for work only with DHS authorization”. So Dreamers pay employment taxes but are not eligible for any benefits. They are not eligible for social security or disability benefits.
“This policy was implemented unilaterally to great controversy and legal concern after Congress rejected legislative proposals to extend similar benefits on numerous occasions to this same group of illegal aliens. In other words, the executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”
On June 15, 2012, President Obama created a new policy calling for deferred action for certain undocumented young people who came to the U.S. as children. There is no direct path from deferred action to lawful permanent residence or to citizenship. And, it can be revoked at any time. This deferred action was not a “circumvention of immigration law”. It was not an executive order and was not a “law”. In fact, executive immigration actions are not rare and have been used by several presidents, including President Reagan and President Bush. For the past 5 years, Congress could have, at any time, created legislation that would alter or revoke DACA. They chose not to.
“The effect of this unilateral executive amnesty, among other things, contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences. It also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.”
The southern US border had been experiencing a surge of unaccompanied minors for more than a decade, most recently the vast majority have been escaping civil war, gang and drug violence from El Salvador, Guatemala and Honduras rather than a desire to take advantage of DACA.
And considering that President Trump has been touting the low 4.4% unemployment rate since he’s taken office (it was 7.9% at the end of 2012), it’s hard to believe that “hundreds of thousands of Americans” have been denied jobs because of DACA.
SO WHY NOW?
Even in the face of 400 business leaders who have urged President Trump not to rescind DACA, the Trump Administration decided to phase out the program following the threat of legal action by Republican attorneys general from nine states against DACA.
In a letter to Acting Department of Homeland Security Secretary Elaine Duke on Monday, Attorney General Jeff Sessions wrote that the program “was an unconstitutional exercise of authority by the Executive Branch” that would not withstand a court challenge. “In light of the costs and burdens that will be imposed on DHS associated with rescinding this policy, DHS should consider an orderly and efficient wind-down process,” Sessions wrote.
The Trump administration does not want to have to defend in court a program that they do not support, especially if the attorney general is cautioning that it will not withstand a court challenge. Losing in court does not reflect the “winning” agenda that Trump continues to proclaim at rallies and on Twitter.
Congress now has six months to develop a policy that decides the fate of Dreamers. Considering that they haven’t been able to find common ground since 2012, it’s doubtful Congress will be able to save any form of DACA.