Here is the price of governing by executive order: The next executive has the power to undo what you’ve done. And that is what the Trump administration is doing when it comes to deferred prosecution of some immigrants whose parents brought them to this country illegally as children.
Attorney General Jeff Sessions just announced that the program, called DACA (Deferred Action for Childhood Arrivals), “is being rescinded.” He said the Department of Homeland Security would be conducting an “orderly wind-down” of the program but offered no details as to what that process would look like. There are reports that the program will be extended by six months into March 2018, though there’s a lack of consensus among those reports as to whether, or for how long, those who are eligible but not enrolled can continue to apply in the meantime, or whether those in the program can apply for renewal. That’s a key question, as I’ll explain in a bit.
The move reverses an Obama administration policy of choosing not to prosecute this cohort, the so-called Dreamers, for being present in the United States illegally. President Obama enacted the policy unilaterally after failing to push a law through Congress that would have accomplished the same thing, only more permanently. He did so after previously acknowledging multiple times he didn’t have the power to change immigration law on his own, and subsequently bowing to pressure from his base to “do something” on the issue. (He later went even further, though federal courts struck down his extension of the policy.)
Democrats consistently looked the other way while Obama governed in this manner. Yet his assault on the separation of powers, from making recess appointments even as the Senate insisted it was not in recess to extending administratively such laws as the Clean Air Act and the Clean Water Act into spheres Congress never intended, was not just extralegal but myopic. For if Democrats were unconcerned before about the “how” of policy making, the presence of Donald Trump in the White House ought to make them reconsider. Still, their sudden fervor for “regular order” in the Senate, quite the hypocrisy after the way Harry Reid ruled that chamber, is undermined for their insistence that immigration law continue to be overridden by the executive branch — as long as it’s overridden in the direction they want.
For now, they’re simply trying to make the case Trump is acting against popular sentiment. And it’s true that opinion polls indicate amnesty for the Dreamers is popular across the political spectrum. But isn’t that the point? Not only should such a highly regarded policy be one that is enacted by law rather than executive whim, but by implementing it administratively Obama removed one potential element of a much-needed, broader update to our immigration laws. The fact people disagree about the other elements doesn’t weaken the case for holding off on dealing with the Dreamers until there’s a deal on everything else. It strengthens the case, because taking this sympathetic group out of limbo can be both a starting point for immigration reform and a source of public pressure to get it done.
It’s safe to say congressional Republicans didn’t trust Obama to agree to an immigration deal that would solve our problems without rendering them sellouts to their voting base. Democrats, who could filibuster any bill in the Senate, may feel the same way about Trump. But it’s also quite possible Trump sees that the Dreamers are key to a broader immigration fix and that putting them back in limbo could ratchet up the pressure on Congress to an unbearable level — even if he will be called mean and cruel and heartless and all sorts of other names in the meantime by those who simply oppose anything he does because he’s doing it.
Here’s where the details very likely matter. If the DACA program is truly being wound down, with those who are eligible no longer able to enroll and those who did enroll losing their status as their two years expire and in some cases being deported, the pressure on Congress to act will be enormous. But if it’s truly extended — with immigrants still able to apply for or renew their status under it — there’s a chance the pressure will instead fall on the administration to cave and offer another extension once March arrives. Either way, it’s clear who President Trump wants to feel the pressure:
Sessions is known as a restrictionist when it comes to immigration policy. But his statement to the press (he didn’t take questions) sounded more like someone who could countenance the DACA policy if it were done in the right way and passed by Congress. If that reflects the president’s position, Trump might be willing to give Republicans cover on enacting this limited form of amnesty in exchange for other policies such as a tougher approach to visa overstays, limits on legal immigration such as Sen. David Perdue’s RAISE Act, and of course the wall.
Somehow, this feels like the beginning of something rather than the end.