The DACA Dance

Republicans are now coming forward to proclaim concern for the fate of the DREAMERS, the innocent young people who took no overt actions on their own to violate our immigration laws, and who have been protected by the provisions of DACA. The program has allowed 800,000 people to come out of the shadows and join the military, go to school, and get good jobs, using their English language skills acquired during the time they have lived in the only country most have ever known.  These same Republicans say that this good piece of public policy should have been hashed out and passed by Congress, instead of being formulated by President Barack Obama. Although Congress has had every opportunity over the last sixteen years to do this, it has failed to do so. This is the DACA dance, the political football that involves the lives of real people, who make real, positive contributions to the land that we all love.

The Republican administration has confirmed the rumors that DACA, the Deferred Action for Childhood Arrivals program, will soon come to an end. DACA is a policy by the Obama administration that defers deportation action and allows for two year work permits for eligible individuals subject to renewal.  The program was announced through a June 15, 2012 memorandum issued by then Secretary of Homeland Security, Janet Napolitano.

Here is some of the recent history on attempts by the United States Congress to pass comprehensive immigration reform. The Senate tried and did pass an immigration reform bill on June 27, 2013 by a 68 to 32 margin. The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, was intended to,

“Grant 11 million undocumented immigrants immediate legal status and a path to citizenship while sending $30 billion to the southern border to beef up security.”

That piece of legislation, Senate Bill 744, was never taken up by the House of Representatives, and the last action on this bill was hearings in the Judiciary Committee on December 10, 2014.

A Dream Act, the Development, Relief and Education for Alien Minors Act, has been floating around Congress since the first version was introduced in the Senate by Dick Durbin, (D-IL) and Orrin Hatch, (R-UT) in 2001. A version of the DREAM Act did pass the Democratic controlled House of Representatives on December 8, 2010. The bill failed to get to the floor of the Senate by a 50 to 49 vote on December 9, 2010.

President George W. Bush tried to push comprehensive immigration reform through Congress in an attempt to deliver on a campaign promise.

The effort failed to get to a vote in the Senate where it died on June 28,  2007.

Attorney General Jeff Sessions, in a September 5, 2017 announcement of the administrations’s decision to rescind the DACA program, said that,

“If we were to keep the Obama Administration’s executive amnesty policy, the likeliest outcome is that it would be enjoined.”

Given the threat by the nine states to seek legal action, if the administration was confident that the program would be enjoined by the courts, the smart legal strategy would have been to allow that legal action to go forward. There is also the issue that it would certainly seem that if and when Congress were to pass a bill to continue the DACA program, the administration has clearly telegraphed their opposition and nothing would prevent a presidential veto.

DACA is well within the the discretionary authority of the executive branch, completely constitutional, and no different from other discretionary immigration programs initiated by all administrations going back almost 60 years. Concerning this specific program, according to the ACLU,

DACA is and always will be constitutional.”

The announcement by the Attorney General included notice that no new applications into the DACA program will be accepted, and the administration is,

Urging Congress to replace it with legislation before it begins phasing out on March 5, 2018.”

Every line of reasoning that the administration has given for ending DACA has little or no basis in fact. For example, Attorney General Sessions said that DACA has,

“Contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences.”

There is little evidence to support the claim that DACA had anything to do with an increase in unaccompanied minors attempting to enter the United States. The attorney general also asserted that DACA,

Denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.”

This is also a claim without merit as,

Few economists or business leaders subscribe to the administration’s view.”

According to the Center For American Progress, ending DACA would cost our economy $433.4 billion over ten years. Even the Koch brothers funded Cato Institute has said that ending DACA will cost the federal government $60 billion in tax revenue over the next decade.

The new Deporter In Chief has said that DACA was a,

Unilateral executive amnesty.”

Attorney General Sessions called DACA an,

Executive amnesty policy.”

Once again this is not an accurate claim. Amnesty is,

“A blanket abolition of an offense by the government, with the legal result that those charged or convicted have the charge or conviction wiped out … Amnesty is not a pardon as some believe, since a pardon implies forgiveness, and amnesty indicates a reason to overlook or forget the offenses.”

Since DACA only provided a two year renewable reprieve from deportation, not a pathway to citizenship, it can in no way be considered a program that granted amnesty.

There is also the history of the Flip Flopper In Chief on the the issue of DACA to consider. In August of 2013 before beginning his run for the presidency, the then private citizen met with a group of DREAMER activists in the Manhattan tower. According to one of them, Gaby Pacheco, the meeting ended with an assurance of a change in his previous anti-DREAMER position, as he said,

You’ve convinced me.

On August 31, 2016, the candidate was in Phoenix, Arizona, where he bragged that he would immediately,

Cancel unconstitutional executive orders.”

That was a reference to the Obama administration’s DACA program, and it was similar to the statement he made on June 16, 2015, when he launched his campaign for the 2015 Republican presidential nomination, as he said that time,

I will immediately terminate President Obama’s illegal executive order on immigration, immediately.”

Shortly after inauguration, 45th* sat down for a lengthy interview with ABC’s David Muir on January 25, 2017, when he said that DREAMERS,

“Shouldn’t be very worried. They are here illegally. They shouldn’t be very worried. I do have a big heart. We’re going to take care of everybody. We’re going to have a very strong border.”

That assurance was followed up by this statement during a February 16, 2017 White House press conference when 45th* said,

We are going to deal with DACA with heart.”

The announcement on September 5, 2017 by the administration to end DACA in six months is a cruel and heartless punishment of the innocent, in order to throw red meat to the President’s ever shrinking base of supporters. The speculation has been that it is his intent to trade the lives of the DREAMERS to Congress, in return for funding of his fantasy border wall. That speculation may very well be proven correct, as shortly after the Sessions announcement, a tweet from 45th* said that,

Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!”

Paul Ryan, the Republican Speaker of the House, had urged the administration not to scrap DACA.  He was joined in that call by Senator Orrin Hatch, the Republican from Utah who cosponsored the first DREAM Act in 2001. Rick Scott, the Republican Governor of Florida, tweeted that,

“These kids must be allowed to pursue the American Dream, and Congress must act on this immediately.”

Senator Lindsey Graham, (R-SC) on December 9, 2016, introduced in the Senate, The Bridge Act,  which would provide that the Department of Homeland Security,

“(1) shall grant a three-year provisional protected presence to a qualifying alien, (2) may not remove the alien from the United States unless such protected presence is rescinded, and (3) shall provide such alien with employment authorization.”

Senators Graham and Dick Durbin reintroduced the Bridge Act on January 12, 2017. The Bridge Act was also introduced in the House by Congressman Mike Coffman, (R-CO) on January 12, 2017.

A new Dream Act of 2017 was also introduced in the Senate by Lindsey Graham and Dick Durbin on July 20, 2017. This Dream Act is now getting the support from both Colorado Senators, Republican Cory Gardner and Democrat Michael Bennett.

The advice from those prominent Republicans has been ignored. The Bigot In Chief has instead again chosen to rely on the Kansas Secretary of State, Kris Kobach, the architect of much of the Republican state voter suppression laws, for more bad advice. Secretary Kobach is a central figure in the move to try to end DACA.  Secretary Kobach and his group first filed a lawsuit against DACA back in 2012. That 2012 lawsuit was dismissed on July 31, 2013.

Other than new players in this Republican administration, nothing has changed since the last time these states attempted to sue over DACA. According to many legal scholars, DACA is still constitutional, as,

Prosecutorial discretion authorizes the president as the chief executor of the law to define his immigration enforcement priorities.”

With the change in administrations on January 20, 2017, emboldened by the anti immigrant position of the Bigot in Chief and by the Department of Justice under Attorney General Jeff Sessions, the Kris Kobach 2012 lawsuit came back as ten states threatened to sue if the DACA program was not ended by September 5, 2017.  In a letter authored by Texas Attorney General Ken Paxton, joined by the attorneys general of Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee and West Virginia, as well as Idaho Gov. C.L. Otter, General Paxton demanded that the administration,

Rescind the June 15, 2012 DACA memorandum and order that the Executive Branch will not renew or issue any new DACA or Expanded DACA permits in the future.”

Since the June 27, 2017 letter sent was by General Paxton, the State of Tennessee has withdrawn from the threat to sue over DACA. In a letter written by Tennessee Attorney General, Herbert Slatery, to his US Senators, Bob Corker and Lamar Alexander, informing of his decision to withdraw Tennessee from the planned litigation, General Slatery wrote,

There is a human element to this, however, that is not lost on me and should not be ignored.”

The Bridge Act replacement for DACA and the DREAM Act could both be passed by Congress at any time, without taking on the heavy lifting of hammering out a comprehensive immigration reform package. Unfortunately, Congress has failed in the recent past to act on immigration issues in large part because the bigoted base of the Freedom Caucus, as the Republican controlled Congress prefers to use the presumed evils of the Brown immigrant for political purposes. If there really was a need to fix a problem posed by the DREAMERS, you would think that these Republicans, with Republican Presidents in four out of the last six administrations, would have acted to do so long ago. The DACA dance will now continue as a bargaining chip for the border wall that will never be built.

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