Some thoughts on DACA

"ImmoralMinority" (araimondo) 11/13/2019 at 16:50 • Filed to: None

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The current case before the Supreme Court is not about the merits of DACA, no matter how much the talking heads want to make it so. It is about process. We have been dealing with abuse of executive power since Bush used 9/11 to grab it, and we have seen the next two presidents abuse it. This is bad for a system that is designed to force compromise. You should read this with the idea that I think that granting some form of amnesty, not just for DACA recipients, but for people who have been living and working here for a long time without getting in trouble. I have been professionally involved in supporting immigration reform since 2001, and at least for agriculture, the proposals that both the industry and labor advocates agree on have been the same since that time. But how we do things is just as important, if not more so, than the substance of what we do. Process matters, and when we disregard it we get unintended consequences.

The President is not allowed to make laws - that is the job of Congress. Faced with an obstructionist Republican Congress, Obama allowed his frustrations to get the better of him and created DACA. DACA rests on the legal foundation of “prosecutorial discretion”- the idea that a prosecutor gets to decide who to prosecute, and can exercise discretion to decline to prosecute even the guilty. Obama himself acknowledged at the time that this was shaky legal ground for the issuance of an entirely new category of visa, although he clearly could choose not to seek the removal of illegal aliens who fit this category. Issuing them visas was a step that was probably unlawful. However, as I will explain, it really doesn’t matter if he acted in the scope of his authority when issuing these visas.

The reason is that DACA loses either way. Either President Obama exceeded the scope of his authority and these visas were never valid (the worst outcome for DACA recipients), or he could he could exercise his discretion and issue them. That is the harder issue for the Court. The problem is that there is an easy issue for the Court. If President Obama could exercise discretion to allow these visas, then his successor can exercise the discretion to refuse to renew what are temporary, two year visas. If a President has discretion to create a new visa program, then a subsequent President has discretion to end that program. Otherwise, the President has the power to rewrite the law in a manner that creates permanent legislative action, which is clearly the sole purview of Congress. This is why Trump is likely to win the DACA case.

It is also a good outcome for our system. Process matters, even on an issue as painful as this one. We have not seen meaningful immigration reform in this country because both parties gain politically from opposing and extreme positions that do not lead to legislative compromise. I spoke to a Republican Senator not long ago who told me that they could not get immigration reform done while Trump had a Republican Congress because too many Republicans insisted on no amnesty provisions whatsoever, an extreme position that has been enabled by the harsh rhetoric of the Trump administration. However, he told me that you won’t see it get anywhere with a Democratic Congress, because they have too many party members who want to tie reform to automatic citizenship and a $15 per hour minimum wage. This has been enabled by actions like DACA, which release the “pressure valve” on a subject like immigration so that no one is forced to compromise.

Here is an example. Trump announced early in his Presidency that he would sign a bill that gave a path to citizenship to a group broader than DACA recipients - a path to citizenship for almost 1.5 million people. This was a substantial offer, but he demanded funding for a border wall in exchange. Democrats were free to reject this because of their desire to prevent Trump from crowing about getting his wall because DACA recipients already had visas. In the absence of DACA Congress would have been forced to act, and it is likely that some sort of compromise would have been reached. Trump would have gotten some money for his wall, and DACA recipients would have gotten the legislative relief that they need. But with the visas there, there was no need for a practical compromise, and Congress was off the hook for inaction.

In the absence of DACA, public pressure would have continued to grow on Congress (DACA is widely popular), and we would be a lot closer to immigration reform than ever. The wall is a stupid idea, but it isn’t that harmful; we have spent stupid money on stupid things before. But the opportunity for a legislative fix for over a million people is one that should not be ignored, and certainly should not be ignored because of an eye to the 2020 campaign. When the President and the courts refrain from legislating, Congress is forced to act. But for a long time now, both the executive and judicial branches have taken it upon themselves to make law, and that has led to and promoted the Congressional gridlock that frustrated Obama, and now frustrates Trump. No matter where you stand on the policy spectrum, this is a bad outcome. Even though I support immigration reform, I think DACA is one of the worst ideas ever - not because of what it does, but because of how it was put into place. It would be good for the long term health of the nation if this fight goes to Trump. By the way, most DACA recipients are eligible for cancellation of removal if removal is sought, and are more likely than ever to get it in what have become insanely overcrowded immigration courts. There is also no room for them in detention, and they are eligible under current standards for OR while awaiting removal proceedings.

So I hope we get real reform, but I also hope that the Court acts to stop legislation by executive fiat.  Those two ideas are not incompatible. 

davesaddiction @ opposite-lock.com > ImmoralMinority 11/13/2019 at 17:05

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So, if the Court rules with the administration to end DACA and Congress and the President fail to quickly pass some kind of immigration reform ( which they will ), what happens to the DREAMers? Sent back to a home they don’t know?

That’s clearly not a legal argument, but that sure is a shitty outcome.

CarsofFortLangley - Oppo Forever > ImmoralMinority 11/13/2019 at 17:10

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/s...kinda

For Sweden > ImmoralMinority 11/13/2019 at 17:18

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Does this get the Americans more cool french cars or not

ADabOfOppo; Gone Plaid (Instructables Can Be Confusable) > davesaddiction @ opposite-lock.com 11/13/2019 at 17:23

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That ‘deal’ will be fund his racist vanity “wall” or else.

Bunch of racist assholes. 

MonkeePuzzle > CarsofFortLangley - Oppo Forever 11/13/2019 at 17:27

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RPM esq. > ImmoralMinority 11/13/2019 at 17:42

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Thi s is a fair-minded, dispassionate, and thoughtful analysis . I enjoyed reading it very much , even if I’m not sure I agree with 100% of it. Thank you.

Spanfeller is a twat > ImmoralMinority 11/13/2019 at 17:45

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I f you read constitutional law, DACA is a flagrant offense to the separation of powers... but in a sense it had to be done.

DACA is about leadership, and responsibility... So long as congress can’t act like a body made up of adults, I don’t think it’s wrong for the executive to overreach, in fact I’d be more worried if they didn’t .

Congress has to exercise it s authority... it only works if they use it.

I know all of that is supposed to be beyond the purview of the courts, but god knows they’ve overstepped their bounds at times where leadership in other branches was lacking as well.

Daca will probably lose, but not because it’s a corrupt policy, but because five justices were appointed by a R epublican president. If it does win, it won’t be because of the law, it will be because the Justices took the context into account as well. Then they’ll strap a bunch of bullshit limiting arguments to make sure the exception only applies to something like DACA.

Textured Soy Protein > ImmoralMinority 11/13/2019 at 17:45

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The wall is a stupid idea, but it isn’t that harmful

The issue Dems take with the wall is not as much with the wall itself but with the message it sends: that America feels the need to build a physical barrier on its southern border to keep mostly brown people out, but feels no need to build a similar physical barrier on its northern border to keep mostly white people out, and that the people pushing this message like to go to fascist rallies where they alternate between shouting about building the wall and chanting USA USA USA.

Agreeing to fund that patently anti-immigrant and racist message as a condition for immigration reform is a complete non-starter.

Sovande > Spanfeller is a twat 11/13/2019 at 18:09

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So it's  all good to circumvent Congress if the idea is a good one in your eyes? 

fintail > ADabOfOppo; Gone Plaid (Instructables Can Be Confusable) 11/13/2019 at 18:22

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I wonder if worthless racist pile of shit Miller will be involved in any of this.

In the end, whatever benefits “business owners” who exploit undocumented labor will end up as policy, de facto or not.

Spanfeller is a twat > Sovande 11/13/2019 at 18:23

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What I mean is the following:
If your parents told you not to go outside, no matter what, but there’s a fire inside and you need to go outside to survive... is there a reason why you should keep the rule?

DACA emerged from years of neglect, and it happened because it solved a problem and it helped thousands of people.... it was congress’ responsibility but they were too partisan to figure it out and someone else picked up the mantle.

Power isn’t given to you... you take it away. If congress wishes to be powerful they need to start exercising their power. Or else one day we will look at them the same way we look at the vice presidency. 

fintail > For Sweden 11/13/2019 at 18:23

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If Mr Quid Pro Quo wanted to do something meaningf ul and against excessive regulation, he and his cabal would reform the 25 year rule.

Highlander-Datsuns are Forever > ImmoralMinority 11/13/2019 at 18:28

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I really thought George W. Bush was going to pass some real immigration reform, then 9/11 happened and all that got thrown out the window. I really like your summary of things and a legislative branch that is frozen in conflict is not helping us one single bit. I am also not a fan of overreach of power by the executive branch regardless of the presidents party affiliation . I am hopeful that in the next few years some of those powers will be reeled in.

CB > ImmoralMinority 11/13/2019 at 18:31

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You make excellent points on legality and respect for the Constitution being in conflict on an ideal to do what is “right”. It’s a damned if you do, damned if you don’t process.

If it’s repealed, then there will be arguments of “oh so this government wants to respect the constitution in THIS case but what about xyz”.

If it’s not repealed, then it establishes a slippery slope.

Who knows, I don't.

ADabOfOppo; Gone Plaid (Instructables Can Be Confusable) > fintail 11/13/2019 at 18:39

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Miller should be a psych ward. That man is dangerous. You can see the malice behind those eyes. 

just-a-scratch > ImmoralMinority 11/13/2019 at 18:41

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Your analysis is fairly well aligned with another I’ve heard. Thanks for the thoughtful post. 

Sovande > Spanfeller is a twat 11/13/2019 at 18:54

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So...yes?

Spanfeller is a twat > Sovande 11/13/2019 at 19:01

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More like... maybe?

There are some situations in which abuse of power is better than a power vacuum. 

DipodomysDeserti > ImmoralMinority 11/13/2019 at 20:52

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I agree with you on the need to limit presidential power and how useless and regressive DACA is, but I don’t think a ruling against it will necessarily limit the ability of presidents to issue memorandums.

Yes, Obama instituted the “ law” by presidential memorandum, but the whole reason Trump’s repeal (also issued through presidential memorandum) went to the SC is that lower courts said the Trump administration didn’t give a good enough reason for their memorandum.

The language of the majority opinion will influence how this case shifts power towards or away from the presidency. If they end DACA and say it’s because Obama didn’t have the power to institute it, there will be a limiting effect. If they say it’s because Trump has the power to issue memorandums that end whatever non legislative programs he wants, it will just reinforce the president’s ability to issue memorandums.

With the balance of power in the SC now, I think they’ll morph into an even more political entity, shifting between ideologies depending on who has legislative and presidential power, just like the other two branches have since 9/11.

9/11 marked a huge paradigm shift American politics, essentially creating two parties that favored centralized power. I think Reagan first  gave us a preview of this shift.

subexpression > ImmoralMinority 11/13/2019 at 21:06

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One of my ongoing annoyances is that there is almost never any talk of changes to the immigration process. Somehow people managed to hijack the term “immigration reform” to only mean “amnesty for undocumented immigrants”. Any mention of actual reform ranges from being lost in the noise to being deliberately swept under the rug.

I think immigration reform in Congress might be even more complicated than what you describe. In spite of the official party line, rank and file Democrat-leaning voters are not always thrilled with the idea of opening up more immigration. It wasn’t that long ago that I heard the old standard phrase “coming here to steal our jobs” from some people in a heavy blue collar union stronghold . On the liberal white collar side, I often see a vague dislike of Chinese (as a proxy for most of east and southeast Asia) immigrants , and outright hatred toward Indians (as a proxy for all of south Asia) . As long as those attitudes are still common, m aking up excuses to avoid supporting reforms will be the safe choice for some number of Democrats in Congress .

shop-teacher > ImmoralMinority 11/13/2019 at 21:29

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I concur with your analysis. I really hope we can get some genuine reform out of Congress ... Or literally anything of substantive consequence ... Sometime in my lifetime????

CTSenVy > shop-teacher 11/13/2019 at 21:51

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As long as the process is as polarized as it is, I fear we will keep having the same conversations/arguments for a very long time.  

shop-teacher > CTSenVy 11/13/2019 at 21:58

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*sigh* I fear you're right.

davesaddiction @ opposite-lock.com > Highlander-Datsuns are Forever 11/14/2019 at 09:54

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It made all the sense in the world for the Republicans to strongly ally themselves with the Hispanic population. Their short-term gains under Trump and his ilk are their long-term loss.

BoxerFanatic, troublesome iconoclast. > ImmoralMinority 11/14/2019 at 10:41

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Beneath the immigration issue, it is a governmental process issue, which is something I have had a problem with for quite some time.

The President is not the chief legislator, in fact, is not a legislator AT ALL. Not even the Vice President presiding over the Senate is a legislator, as the presiding officer does not vote, nor usually contribute to debate, merely conducting procedure.

The Executive branch isn’t a second legislative branch, it is not intended to be, it is not elected to be, it doesn’t supercede the people’s House of Representatives, nor the states’ equal-representation house of congress, the Senate.

The president executes policy made by the representatives of the people.

An executive order is not a law, it does not have the checks and balances, nor the force of law, at least it shouldn’t. An Executive order deals with “HOW” a policy is enforced and implemented, not a “WHAT” the policy is.

Presidents past and present who use executive order to set policy should actually be treated as exceeding their constitutional bounds, and should be put in check by the court, not ratified by the court, because that isn’t the court’s role, either.

I don’t trust presidential candidates that run on setting policy. I don’t approve of elected presidents that do set policy.

If it can’t get through the legislative morass in Congress, then Congress needs to be cleaned out and re-populated with better representatives, not bypassed by the executive and judicial branches.

This affects EVERY topic, not just the topic of immigration control, especially since the government sees fit to exceed it’s constitutionally enumerated powers and infiltrate every aspect of human life, and make everything everyone does political, and not leave things to state, local, and most importantly INDIVIDUAL purview.

The experiment of citizen self-governance and citizen-accountable federalism cannot succeed if it is not even allowed, let alone fostered and understood.

There are too many self-important people who see themselves as elitist central planners, who know more than everyone else and wrest control away from them, so that citizen accountable representative government can’t be allowed to actually function that way, it has to be turned into a nationalist, government control of subjugated people methodology for the sake of centralized control.

They know more than you about how you should eat, sleep, brush your teeth, raise children (they think children are theirs to raise and educate , not yours, if you actually get past the lip-service), work, earn, spend, sit, stand, walk, run, and talk.

Try to think of an aspect of your life that government doesn’t touch.

Remember that when political candidates want to make campaign promises to set policy, not just how, but what, when, where, and why. And whether they are people of character that you should trust to control every aspect of your life, and everyone else’s, or not.

If they say nothing about restraint, nothing about proper purview, nothing about limits to what the government can or can’t do... chances are they don’t see limits to what the government can do.

“A government big enough to give you everything you want, is big enough to take everything you have.”