Two weeks ago, Secretary of Homeland Security John Kelly pulled the plug on the Obama brain-fart called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This was an extra-legal and illegal program that gave persons who claimed to be the parents of people who claimed to have been brought to the US illegally as children a Get-Out-Of-Jail-Free card in their dealings with immigration enforcement officials.
While this was welcome, it was also pre-ordained. In 2014, Texas and 25 other states sued the federal government over the policy. A federal judge issued an injunction which was upheld by the Fifth Circuit (let me here reiterate my opposition to the obvious insanity of a single federal judge or federal Circuit Court claiming the authority to make a ruling which is binding on the US government in toto. This is wrong, it is insane, and the Founders never contemplated any federal judge having that authority). The Supreme Court refused to hear the case. So DAPA was essentially on life support inside an iron lung when Kelly decided to rescind the program.
A larger problem is the Deferred Action for Childhood Arrivals (DACA). When Kelly announced the DAPA decision he said no decision had been made on DACA. DACA represents a much more sympathetic demographic than did DAPA. Allegedly, DACA participants were brought to the US as children and have lived here and are culturally American and yet at risk of deportation. Getting rid of DACA by executive action would be a public relations nightmare that would hurt the administration with a majority if Americans. The flip side to that is that as long as the Executive Branch is willing to go ‘don’t ask, don’t tell’ on the 600,000 or so people covered, leaving them perpetually on the fringe of society, Congress is clearly unwilling to take the heat of acting.
Now that option may be going away.
Attorneys general from Texas and nine other Republican-led states threatened Thursday to sue the Trump administration over a program that grants deportation relief and access to work permits to nearly 788,000 “Dreamers,” or undocumented immigrants brought to the country at a young age.
In a letter to Attorney General Jeff Sessions, the states urged the administration to rescind the June 2012 memorandum that created the Deferred Action for Childhood Arrivals program during President Barack Obama’s first term.
The letter called on the federal government to phase out DACA by ceasing to accept new enrollees or to renew existing applications — a decision that would leave many Dreamers subject to deportation.
Legally, the case against DACA is nearly identical to that against DAPA. No matter how sympathetic and telegenic they may be, the law simply does not give the president the authority to offer quasi-legal status to several hundred thousand people who are not eligible for legal residence under the laws established by Congress. A lawsuit by Texas and its allies will almost certainly result in DACA being enjoined and then the Trump administration will be forced to deal with a no-win immigration issue.
The obvious solution is for Congress to step up and do something. Either make a one-time carve out for the so-called Dreamers or say no to the idea. The odds of that aren’t terribly great, though.