No matter how the U.S. Supreme Court rules in the three consolidated immigration cases heard Tuesday, the fact that the Deferred Action For Childhood Arrivals (DACA) program came down to an up or down vote of six men and three women is itself a lesson in how Washington works — which is to say, not well. Only the most anti-immigrant extremist believes the 700,000 or so individuals eligible for the DACA program — straight-arrow young people with no criminal record, a high school degree and, in some cases, a record of U.S. military service — should be expelled from this country, the only home many of them have ever known. It’s ludicrous. It’s preposterous. It’s ridiculous. And yet here we are at a place that could easily have been avoided.
For those who may have forgotten, President Barack Obama established DACA seven years ago as a kind of temporary stop-gap measure because of congressional inaction. These are people who are Americans in all but legal status, don’t pose a threat and yet could not be fully incorporated into society. So under the program, they had to apply, pay hundreds of dollars in legal fees, undergo a background check and submit their fingerprints. In return, they’d have the right to work in this country legally and be eligible for things like a driver’s license and health insurance. It was the most pragmatic of approaches. It wasn’t ideal (congressional action would have been more definitive, obviously), and it didn’t solve the totality of the nation’s broken immigration system. But for this sliver of the problem and until a more permanent solution was found, it was a reasonable approach.
Unfortunately, President Donald Trump decided to upend this particular apple cart by seeking to end DACA without sufficient explanation or formal justification, which created this kind of legal conundrum that caused lower courts to side with DACA defenders. The signals were mixed from the start with President Trump mostly interested in using DACA as a bargaining chip with Democrats in Congress and not really caring about the young people in question, particularly given how his anti-immigration rhetoric thrilled core supporters and helped get him elected in the first place. Indeed, he was back at it again Tuesday with the usual mixed messages. In a posting on Twitter, Mr. Trump both condemned the immigrants involved (suggesting some are “tough, hardened criminals”) and yet offered to negotiate with Democrats over their future. “If Supreme Court remedies with overturn, a deal will be made with Dems for them to stay!” He tweeted in between customary pronouncements about Joe Biden, the impeachment inquiry and the economy.
Given how skeptical many of the justices seemed Tuesday during 80 minutes or oral arguments, DACA may be overturned as early this spring yet, why wait for an adverse Supreme Court ruling to fix the problem? Congress could still rescue the dreamers and set things right. The U.S. House of Representatives passed such a fix in June with seven Republicans joining Democrats (a truly bipartisan vote by modern standards). It sits helplessly in the U.S. Senate under the iron grip of Majority Leader Mitch McConnell without much chance of action. Last year there were at least two other attempts at a compromise that involved greater funding for border security in return for fixing DACA. President Trump nixed them. And previous to that there were others including a pie-in-the-sky plan pushed by President Trump that provided citizenship for dreamers, billions toward a U.S.-Mexico wall as well as substantial cuts to legal immigration. Democrats weren’t willing to go that far, and one can scarcely blame them now for being a little skeptical about how serious the administration’s latest offer to negotiate.
So there you have it. A group of decent, hardworking people used as a political football, a perfectly workable fix rejected for political gain, a gridlocked Congress and now lawyers debating the minutia of administrative law and executive actions. At its heart, DACA is simply a choice to give greater priority to enforcing immigration law against bad people (law-breakers, for example) and leaving alone the good who, by any reasonable measure, deserve to have a chance to be useful, productive citizens. No one can argue the common sense of that but, apparently, they can argue the legal framework that allowed DACA to be created in the first place while ignoring the harm that program’s abrupt end will cause hundreds of thousands of young people.