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Putting A Deadline On DACA

Deferred Action for Childhood Arrivals, known as DACA, was a policy that at best served as a timeout for legislators who preferred not to deal with our faulty immigration system.

The president has just restarted the clock.

News broke over Labor Day weekend that President Trump had decided to end the Obama-era program. The following Tuesday, the administration formally announced that decision, saying the Department of Homeland Security would immediately stop processing new DACA applications. Attorney General Jeff Sessions explained that the administration would, however, renew existing permits for anyone whose status expires in the next six months, giving Congress time to pass legislation that will determine the fate of the approximately 800,000 individuals who currently live and work in the U.S. under DACA rules.

These immigrants came to the United States without permission as children or young teenagers and, under DACA, could live and work here without immediate fear of deportation. Successful applicants received these benefits for two years, with the option to renew. But they were always relying on a stopgap measure. Then-President Obama took pressure off lawmakers to deal with our immigration mess in 2012 when he used an executive order to patch a legislative hole – but the hole didn’t go away.

The DREAM Act, which would have given legal resident status to these immigrants, was first introduced in 2001, but has languished for years on Capitol Hill. DACA was Obama’s attempt to build on its promises – but, since it was an executive order and not a law, it could never offer its beneficiaries true legal assurances. Only Congress can change the nation’s immigration law; the executive branch can, at best, tweak the ways in which it is enforced. As I wrote at the time, rather than offering its beneficiaries safe harbor, DACA posed a real danger to the individuals who stepped out of the shadows in good faith. Obama’s move was good politics for him – coming, as it did, amid a re-election campaign in which he aggressively courted Latino votes – but ultimately bad politics for the policy’s beneficiaries, whose status depended on the willingness of a president to assert powers beyond those granted under the law.

Today, those individuals are in a frighteningly precarious position while they wait for lawmakers to act (or to fail to act). They face not only uncertainty about their future status in this country, but the knowledge that the government retains all the personal information they submitted to apply for protection.

One way or another, DACA was almost certainly doomed. It is unlikely to have withstood a legal challenge that was being prepared by as many as 10 Republican state attorneys general. By winding down the program over a six-month window (or more, if he decides to extend it), Trump is handling the legal mess that was handed to him in a relatively humane way. He is giving Congress a deadline to make a legislative call on a matter that was always theirs to handle. If the courts had decided the issue, the end of DACA could have been much more abrupt.

The appropriate response for Congress is to extend DACA’s protections through legislation, which is the way the policy should have been instituted to begin with. This will require a bipartisan effort, because diehard anti-immigration Republicans will not support it under any circumstances. But many more moderate Republicans have said that they support some measures to protect current DACA recipients from deportation, making an effective coalition likely to succeed. The Democrats who applauded Obama’s action in 2012 should thus join with sympathetic Republicans to make the legislation happen. I think this, in fact, is the most likely outcome. It is certainly the most humane option.

House Speaker Paul Ryan issued a statement expressing the hope that Congress can succeed in passing a permanent legislative fix before the deadline. “It is my hope that the House and Senate, with the president’s leadership, will be able to find consensus on a permanent legislative solution that includes ensuring that those who have done nothing wrong can still contribute as a valued part of this great country,” Ryan said following the White House’s announcement.

That said, the most likely outcome is still not a sure thing. Lawmakers face a full agenda this fall, so it will be crucial that enough of them prioritize a legislative fix to move it forward in the window the administration created. And they will need to settle on a compromise everyone can live with, despite competing priorities on either side of the aisle.

It is unfair to argue that Trump himself is displaying anti-immigrant hostility by reverting to the same policy that made Obama the “deporter in chief” throughout his first term, before he decided to court the Latino vote in 2012. DACA was a unilateral move that was never going to work as a permanent fix without lawmakers’ eventual action.

We can only solve the legislative mess surrounding our immigration policy through the legislative process. It is past time for Congress to get to work.

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