House Minority Leader Nancy Pelosi (D-Calif.) on Monday responded harshly to reports that President Trump was inclined to end the Deferred Action for Childhood Arrivals (DACA) program. “President Trump’s decision to end DACA should break the hearts and offend the morals of all who believe in justice and human dignity,” she said in a written statement. “This cruel act of political cowardice deals a stunning blow to the bright young DREAMers and to everyone who cherishes the American Dream.” She pointed out, “Strangely, the President has chosen to pardon someone who shares his anti-immigrant views, Sheriff Arpaio, who was convicted, while punishing young children who are innocent.” Strangely — or consistent with his desire to fuel the animus his supporters feel toward illegal immigrants, even those who were brought here as children.
What are Democrats prepared to do? “House Republicans must join Democrats to pass legislation to safeguard our young DREAMers from the senseless cruelty of deportation and shield families from separation and heartbreak,” she vowed. “Democrats will stand firm with DREAMers and redouble our efforts to protect our nation’s families from the Trump Administration’s mass deportation agenda.” What exactly that entails is far from clear.
One avenue is through the courts. New York Gov. Andrew M. Cuomo (D) and state attorney general Eric T. Schneiderman issued their own statement. After condemning Trump’s “cruel, gratuitous, and devastating” decision, they declared:
If he moves forward with this cruel action, New York State will sue to protect the ‘dreamers’ and the state’s sovereign interest in the fair and equal application of the law. Ending this policy represents an assault on the values that built this state and this nation. The President’s action would upend the lives of hundreds of thousands of young people who have only ever called America their home, including roughly 42,000 New Yorkers. It will rip families apart, sow havoc in our communities and force innocent people—our neighbors, our friends, and our relatives—to live in fear. . . . We have both a legal and moral obligation to make sure that the laws are faithfully executed without discrimination or animus.
Washington state’s attorney general said on Monday he would also sue.
The legal theory for such cases would be that having lured immigrants out of the shadows with the promise of legality, the government cannot at the very least use the information these young people provided in good faith to deport them. The unfairness of the situation, DACA defenders will argue, is so severe that such action would amount to a due process violation. One legal guru, Zachary Price of Hastings Law School, argues:
President Trump remains free to cancel the “Deferred Action for Childhood Arrivals” (DACA) program if he wishes, and the immigrants who benefited from it remain subject to potential deportation, however heartless it would be to actually deport them. But the Trump Administration cannot use information from these immigrants’ own deferred action applications against them. . . .
Had DACA never existed, the government would have had to do gumshoe detective work to identify and apprehend DACA beneficiaries. It shouldn’t be spared that burden by virtue of having tricked those same immigrants with false promises of relief. To allow the government to perform such a bait and switch would be an outrageous form of entrapment that the Due Process Clause should prevent.
Laurence Tribe posits a broader protection beyond simply using the information DACA beneficiaries provided, citing a series of cases “involving government pulling the rug out from under those who rely to their detriment on its express or implied promises that would form part of the legal narrative.” He tells Right Turn, “Clearly, in serving its interests in smoking people without papers out of the shadows and into the open, the government — by promising them that, if they registered for DACA and complied with various other conditions, they’d not be targeted for deportation — created not just some technical estoppel but a basic duty as a matter of due process of law.” He argues that this “surely embodies a core notion of fair process substantively as well as procedural, that Trump is essentially breaching by telling them that their fate will be up to what an invertebrate Congress cobbles together, if it manages to do anything at all, once six months have elapsed.” Put differently, Trump is turning DACA into a giant entrapment scheme, a move the courts would be asked to stop.
Congress, obviously, offers the surest path to fix the mess Trump apparently intends to make. Pelosi and Senate Minority Leader Charles E. Schumer (D-N.Y.) will have to see whether substantial pressure can be brought to bear for stand-alone legislation. If not, they will need to assess whether they can tie DACA relief to other must-pass legislation — everything from the debt ceiling to Hurricane Harvey relief to funding the government beyond Sept. 30. As Republicans learned during the Obama years, however, risking default is so irresponsible that leadership would be hard-pressed to make a convincing threat. Moreover, since Republicans actually do have majorities in both houses, they theoretically should have the votes to raise the debt ceiling.
As for funding the government, it’s unlikely a budget and all 12 appropriations bills will all be completed by Sept. 30. That suggests some bargaining leverage would exist for funding one or more aspects of the government that Republicans desperately want. Emergency services would continue but non-emergency service in the Department of Homeland Security or in other programs popular with Republicans might be held up.
What about the potential for a trade — DACA protection for money for Trump’s wall? Democrats say now that they refuse to make DACA beneficiaries into hostages to trade for a useless and offensive symbol of intolerance, but one can imagine some scenario in which increased spending for border protection (not an actual wall) could be agreed upon as part of a package. Democrats, however, should be wary of allowing DACA recipients to be part of an unbalanced, enforcement-only immigration bill, which in any case could take months if not years to negotiate. Under no circumstances should they accept any offer to keep the dreamers in exchange for an economically ludicrous plan to cut legal immigration in half, a pet project of the politically ambitious, anti-immigrant Sen. Tom Cotton (R-Ark.), who perhaps should consult with farmers and businesses in his state before advocating such economic nonsense.
There is no clear or single strategy at this point for sparing the dreamers. Democrats should make certain whatever course they choose that it is clear the onus falls on Republicans to find a legislative solution. That’s what House Speaker Paul D. Ryan (R-Wis.) keeps promising to do, right? If Republicans do not agree to reasonable measures to protect these young people, the political guillotine should fall on them and them alone.