Someday, many years from now, historians will use the Deferred Action for Childhood Arrivals program as a case study in the monumental dysfunction of American democracy in the early 21st century. But there is no guarantee that the issue will be consigned to the history books by then. Many of the “dreamers” could pass on to the next world before our political institutions have settled their fate in this world.
DACA was initiated in 2012 by President Barack Obama after he gave up on persuading Congress to pass legislation that both Democrats and many Republicans — including President George W. Bush — thought was wise and necessary. The program allowed foreigners brought here illegally as children to remain in the United States and eventually gain citizenship if they met certain criteria.
Broad public support for legislation was not enough to overcome irresponsible fearmongering and partisan gridlock. The blameless became the victims of the feckless.
Obama resorted to executive authority to grant a reprieve to hundreds of thousands of young people who were American in everything but citizenship documents — having grown up here, attended school here and even served in the U.S. military. But DACA was quickly mired in litigation that cast the intended beneficiaries into a perpetual purgatory.
Last week, a federal judge in Texas struck it down as a violation of federal administrative law. “The executive branch cannot just enact its own legislative policy when it disagrees with Congress’s choice to reject proposed legislation,” wrote Judge Andrew Hanen. At the same time, he specified that his decision does not “require DHS or the Department of Justice to take any immigration, deportation, or criminal action against any DACA recipient, applicant, or any other individual that it would not otherwise take.” The “Dreamers” remain in limbo.
Americans can reasonably disagree on how to combat undocumented migration and what to do with foreigners who choose to break our laws in coming here. But the point of expelling those who didn’t make that choice is beyond comprehension.
It would amount to punishing children for the sins of their parents. It would also amount to punishing grandchildren: DACA recipients have given birth to 250,000 U.S. citizens.
It would mean wasting the investment Americans have made to educate these members of our community. It would mean forfeiting their productive skills, to the detriment of the economy. It would deprive companies of workers and destroy small businesses founded by people pursuing the American dream.
But it would not deter migration. The Central Americans now waiting at our southern border didn’t embark on a death-defying 1,000-mile journey because of an executive order issued nine years ago that may not survive. They did it out of a desperate desire to escape violence and poverty. Expelling every “dreamer” wouldn’t keep a single migrant away.
On Monday, the 9th Circuit Court of Appeals recognized as much, ruling against environmentalists and ranchers who said DACA violated the law mandating an environmental impact review for some major federal actions. The unanimous panel rejected the ridiculous claim that the program entices more foreigners to sneak in.
Wrote Judge Jay Bybee: “Plaintiffs ask us to assume that aliens outside the United States who are, by definition, ineligible for DACA relief would learn about the policy; mistakenly believe it applicable to them or that they might obtain similar relief from a future administration; come to the United States based on their misconceptions; and permanently settle near Plaintiffs, thereby increasing the population and straining environmental resources. The attenuation in this chain of reasoning, unsupported by well-pleaded facts, is worthy of Rube Goldberg.”
Republicans in Congress have long criticized DACA as an illegal use of executive power. But the logical response would be for them to usurp this presidential decree by passing a bill to protect the “Dreamers.” Many GOP members say they can’t abide such legislation until the border is “secure,” which is the equivalent of not going to confession until you’re sure you’ll never sin again.
A Pew Research Center poll last year found that 74% of Americans, including 54% of Republicans, support legislation to grant permanent legal status to the “Dreamers.” The support has been there for a long time. But the state of our democracy is such that the solution the American people want is one they may forever be denied.