There are several avenues that defenders of the Deferred Action for Childhood Arrivals program can take as they fight to allow 800,000 immigrants, known as “dreamers,” who cleared criminal background checks, met the education requirement, paid a not insignificant fee and presented themselves to the government to remain in the country.
The primary mechanism to accomplish this is legislation passed by Congress and signed by President Trump. In theory, Senate Majority Leader Mitch McConnell (R-Ky.) and House Speaker Paul D. Ryan (R-Wis.) could put a DACA fix on the floors of their respective houses and pass it today.
With unanimous Democratic votes and a batch of moderates Republicans on record in some fashion in support of DACA, it would likely clear the House. In the Senate, I can think of 12 Republicans off the top of my head who could break a filibuster: The four Republicans from the Gang of Eight, plus Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, Orrin Hatch of Utah, James Lankford of Oklahoma, Cory Gardner of Colorado, Thom Tillis of North Carolina, Pat Toomey of Pennsylvania and Joni Ernst of Iowa, have all spoken favorably about a legislative fix for DACA.
Democrats should therefore stress that it is fully within Ryan’s and McConnell’s power to spare the DACA beneficiaries. If they choose not to, then they are as culpable as President Trump and Attorney General Jeff Sessions in the cruel, unnecessary effort to chase out 800,000 young people. In particular, they must apply pressure to Ryan, who said over and over that he wanted to fix DACA legislatively. The combination of Republicans who say they support DACA and Democrats may try to force a vote by refusing to vote on the budget without a DACA fix attached. That may be the only means of applying pressure to Ryan to put a measure that his hard-liners don’t ever want to see come up for a vote.
It seems increasingly likely that Republicans will attempt to extract concessions from Democrats (money for a useless wall, counterproductive limits on legal immigration). Democrats for now argue that those issues should be dealt with after Congress repairs the damage Trump has done. DACA recipients should not be used to extract inane provisions that Trump needs to assuage his ego, they argue — not unreasonably. They also worry that concessions to Republicans would increase demands on their own side, sending Congress down a road to oblivion. Nevertheless, if this is going to get done at some point, reasonable Republicans may approach Democrats with a reasonable deal (e.g., more funding for border security or initiating an e-verify system) that does not offend Democrats’ core concerns. Will Democrats accept a plan to slash legal immigration in half? No, but between that and a “clean” Dream Act bill is a vast space for statesmanlike dealmaking.
Beyond Congress, DACA defenders have to keep Trump in the spotlight. Trump couldn’t make it through the day on Tuesday before confessing he would revisit DACA if Congress did not act within the six-month limit. It’s not clear what he means by that or why whatever he is planning could not take place right now. The flip-flop, in any case, reflects Trump’s inability to take heat on any policy topic.
Democrats should aim right for that weakness. They can run ads deploring DACA’s repeal and organize demonstrations aimed at Trump. Trump didn’t need to pull the plug now, lawmakers and activists should point out (in news conferences, speeches and interviews). Trump either let himself be bamboozled into threatening 800,000 young immigrants or he decided it was more important to satisfy his xenophobic base than treat productive immigrants who know no home but America humanely. If he really “loved” dreamers, he would not have gone down this road. A “Trump hates dreamers” campaign would be just the sort of thing to get under his skin. Trump’s most aggressive anti-immigrant aides (looking at you, Stephen Miller) may have convinced Trump he could do this without his fingerprints on a monstrous action to expel 800,000 young people. If that was the plan, it was a lie — the president is always responsible, and especially here when Trump was under no compulsion to pull the plug on DACA.
Finally, there is more to be done on the legal front. CNN reports:
New York’s Attorney General Eric Schneiderman addressed a crowd of DACA supporters Tuesday evening in New York City’s Foley Square. He said New Yorkers here on DACA status are “not your enemy,” and that they represent “the best of America.”
“And to President Trump, let me say something I have repeatedly said — I will see you in court,” Schniederman said, met by cheers from the crowd of hundreds.
It’s far from clear that Trump can be prevented from rescinding DACA, but litigants might be able to delay its implementation on grounds that Trump and Sessions did not abide by the requirements of the Administrative Procedure Act, requiring notice and a period for comment for changes in government rules. There is also a solid due process argument that the government should not be allowed to use information DACA applicants supplied to then track them down and boot them out.
Meanwhile, pressure should be applied to the Justice Department. Former Justice Department lawyer Jack Goldsmith asks a number of key questions: “Did Sessions consult w the [Solicitor General]’s office about the new [U.S. government’s] litigation position, and its consequences (inter alia) for SG credibility?” He recalls that “in 2014 DOJ’s Office of Legal Counsel wrote an opinion that concluded that DACA was constitutional.” That leads to even more questions: “Did Sessions consult OLC on this? If so, did OLC revise its views and/or withdraw the 2014 opinion? If Sessions didn’t consult OLC, what’s the status of 2014 opinion? Will it be withdrawn? What is official DOJ position on this matter?” Sessions can be asked about these matters in oversight hearings; outside groups can send FOIA requests to the Justice Department seeking documents that lay out the department’s legal reasoning. It’s no wonder Sessions wouldn’t take questions at his Tuesday announcement. He cannot, however, indefinitely avoid answering questions as to the basis for his decision.
In sum, if DACA is to be saved, it will take a full-court press directed at Congress along with continued pressure on the president and persistent questioning of the Justice Department. Without sustained pressure, dreamers will be left in limbo, beset by uncertainty about their futures and with possible deportation hanging over their heads.