DACA and Congressional Cowardice

This is cross-posted from Letters Blogatory

There are hundreds of thousands—maybe more than a million—people living in the United States who entered the United States illegally with their parents when they were children. In the important moral senses, they are as American as I am, or certainly as American as my immigrant ancestors were. They have learned English, they work, they go to school, they pay taxes, they are in military service. But they are not American citizens, and under the applicable statutes they have no right to be in the country and are liable to removal.

For nearly twenty years, legislators from both parties have introduced bills to help these people. The main bill is called the DREAM Act (for “Development, Relief, and Education for Alien Minors”). So the young people the bill means to help are called “Dreamers.” But in all that time, Congress has not passed the bill, either as a stand-alone bill or as part of a comprehensive immigration reform bill. In 2012, the Obama administration, through executive action rather than through legislation, stepped in. The executive action, called DACA (for “Deferred Action for Childhood Arrivals”), purports to be guidance for how to exercise prosecutorial discretion with respect to Dreamers. For Dreamers who meet the criteria set out in the key memorandum setting out the policy, the immigration authorities are to exercise their discretion “on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.” As the policy has been implemented, Dreamers can apply to participate in the program, and they can also obtain work authorization and even advance parole (i.e., advance permission to enter the United States if they travel abroad).

I have been critical of DACA for a long time, because I think it is an example of executive overreach. It’s one thing to prioritize scarce enforcement dollars by focusing immigration enforcement on high-priority targets, e.g., immigrants who are here illegally and commit serious crimes. But it’s another thing to create a quasi-legal status for Dreamers without Congressional action. The President lacks the power to legislate. And I don’t see anything legally wrong with the Trump administration’s recent announcement that it intends to end the DACA program. Indeed, if I thought that President Trump were motivated by a sincere concern for the proper separation of powers, I might even see the action as admirable.

That said, it’s obvious that the Obama administration was responding to a moral crisis. Nearly everyone except the Trump rump of the Republican Party seems to agree that it is morally unacceptable to deport the Dreamers, which (again, morally) seems a kind of punishment visited on them for the sins of their parents. So I fault the Obama administration legally, but there was a strong moral case behind its actions, and if you’re going to push the envelope, the cause of the Dreamers was a good cause to choose.

The systemic problem, though, is clear. Over time, and especially, I think, during the Obama administration, the executive was forced or at least pushed to take executive action because of Congressional inaction. Some examples:

• Congress, in the aftermath of 9/11, passed the Authorization for the Use of Military Force, which provided the executive branch’s legal basis for the war in Afghanistan and then around the world as circumstances have warranted, even now, sixteen years later. This despite the fact that the AUMF only authorized the use of force against “nations, organizations, or persons” that “planned, authorized, committed, or aided” the 9/11 attacks, or “harbored such organizations or persons,” and despite the fact that Congress has the sole power to declare war.
• In the face of the Republican Party’s epic denial of the facts about climate change, the Obama administration treated the Paris Agreement on climate change as an executive agreement with political but no legal force. A treaty cannot be ratified without the advice and consent of the Senate, which obviously would have been unwilling. Again, it’s easy to understand why the Obama administration did what it did, given the importance to the Earth of addressing climate change. On the other hand, the Trump administration’s withdrawal from the Agreement was entirely predictable, though hardly motivated by a concern for the separation of powers.

Why has Congress failed to act in these and other cases? Well, why should it? Why go out on a limb and authorize military action in Yemen, say, when the President is willing to take action without Congressional approval and when voters are going to hold you responsible if you vote for something that results in American deaths? Why go out on a limb and vote to help Dreamers when you’re likely to face a primary challenge from the right and when the President is willing to do it for you? In other words, political cowardice. Bonus; you get to go on TV and inveigh against the executive overreach that you abetted!

Of course, now the situation is different than it was in the Obama years. Now, the President claims to want to cede executive power in favor of Congress. So now Congress can’t take the path of least resistance. Either it has to keep the laws as they are, in which case the President apparently intends to act against the Dreamers, or it has to change the law and pay the political price from the right.

My prediction: the Republican majority in Congress is so fearful of the voters on the right flank of the party that it will do nothing. Cowardice.

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