Now that a federal judge in Texas has blocked further implementation of the Deferred Action for Childhood Arrivals program, or DACA, Joe Biden is vowing to save it.
Don’t bother, Mr. President. With his 77-page opinion, U.S. District Court Judge Andrew Hanen has done you a huge favor by declaring this program unlawful and blocking future applications. Like most of the other remnants of the cruel and self-serving immigration policies advanced by the Obama administration that you were a major part of, DACA isn’t worth saving.
Hanen insists that, in implementing DACA, the Obama administration violated the Administrative Procedure Act. That statute requires that the executive branch give the legislative branch a three-day heads-up before making major policy changes. In other words, the judge didn’t rule that the executive branch doesn’t have the power to do what it did, only that the executive branch did it the wrong way.
But legal technicalities aside, DACA is no free lunch. This is not an instance of America finally embracing part of the undocumented community and lovingly bringing it close to her bosom. What it defers is deportation—but not indefinitely. The whole thing is half con job, half ticking time bomb. That message only got through to some immigrant advocates after Donald Trump was elected president and found himself in possession of a government database containing the personal information of 616,030 undocumented young people.
Let me be clear: A policy that gives a racist president photographs, fingerprints, and home addresses of undocumented Latinos is not a good policy.
The “D” should actually stand for distraction. The Homeland Security policy may have emanated from the executive branch, but it never took the form of a full-blown executive order. That should tell you something.
DACA—which was born not from law books but from politics—has remained a political gimmick. In the 2012 presidential election, then-President Obama was having a devil of a time convincing Latino voters that he was their amigo. He had already broken his 2008 campaign promise to make achieving legal status for the undocumented a top priority of his administration, and deported more than 1.5 million people, most of them Latino, on his way to deporting more than 3 million people over his full eight years.
Alejandro Mayorkas, the current secretary of homeland security, was then serving as director of U.S. Citizenship and Immigration Services. In that role, the Cuban American was circulating memos within the executive branch detailing ideas for how to protect so-called DREAMers from deportation.
Obama had spent most of his first term, from 2009 to 2011, pushing back against the idea that a president—any president—could stop or slow enforcement of immigration laws absent an act of Congress. Remember the “I’m not a king” line that Obama kept invoking early on as a feeble defense when pressed by immigrant advocates to keep his promises on immigration? That’s what it was about.
Meanwhile, Obama was about to be outflanked on the right. Marco Rubio was working with Jon Kyl of Arizona and Kay Bailey Hutchison of Texas to craft a GOP Senate bill to grant legal status to DREAMers.
The administration panicked, dug up the Mayorkas memos, and cooked up DACA to beat the Republicans to the punch. It was as if Obama dug through the couch in the Oval Office, and he found this previously non-existent executive power.
Under the rules of the DACA derby, undocumented young people of a certain age who were brought to the United States by their parents through no fault of their own could apply for a temporary, two-year deferment of deportation and get a work permit. The catch—see above, no free lunch—was that they had to walk into a federal building and turn themselves into authorities. They would basically be arrested, but immediately released with conditions. Uncle Sam was telling these young people: “You’re not a priority. Go to school, go to work. Catch you later.”
Republicans actually think that DACA goes too far. What a bunch of morons. It doesn’t go nearly far enough. What is needed is a permanent solution.
Mitt Romney—the 2012 Republican presidential nominee—came up with the lame idea of making the United States so inhospitable to the undocumented that they simply “self-deport.” So Obama went in another direction, with a devious policy that conned the undocumented into thinking their best option to be able to remain in the United States was to self-report.
Today, the enduring political utility of DACA is that it lets politicians in both parties pretend they’ve done something on behalf of young, undocumented immigrants when, in reality, no one has done squat.
As Americans assess where we are with DACA, and chart where we go from here, we should keep in mind just three things: the law, the politics, and whether the program is worth preserving.
The law: There’s a reason why Hanen, in trying to topple DACA, relied upon a procedural technicality and refrained from challenging the power of the executive branch to prioritize the enforcement of immigration law. It’s because that authority is not in doubt. If the executive branch has the power to deport people, then it stands to reason that the executive branch also has the power to decide in what order people will be deported.
The politics: The judge’s ruling is bad news for the Biden administration, which has already decided that infrastructure spending is where it wants to apply its elbow grease. Back in January, Biden proposed the U.S. Citizenship Act of 2021 to give undocumented immigrants a path to citizenship. But that bill is not going anywhere, and Biden has all but orphaned it. Now DREAMers will demand more from an administration that had hoped to get away with offering less on immigration.
The program: DACA is morally flawed because it was built on shaky ground. It is wrong to negotiate for a drink of water with a person who is dying of thirst. The mere act is unseemly, even cruel, because a dying person is desperate enough to agree to anything. So it was with DREAMers who took the little that Obama offered them, and declared it a windfall. What was the alternative?
After Hanen’s ruling, Biden has an opportunity to end the grand charade and scrap DACA. Government needs to create something better, and to do it the right way this time—through a law instead of a presidential decree.
Since Democrats control the entire game—the White House and both chambers of Congress—they must lead the way to a better solution. To do that, they’ll need to stop seeing the undocumented as pawns that give politicians a better shot at winning elections and start seeing them as human beings who have earned a shot at better lives.
