When SCOTUS Rules on DACA, Then What?

Demonstrators hold signs outside the U.S. Supreme Court as justices were scheduled to hear oral arguments regarding the Trump administration’s bid to end the Deferred Action for Childhood Arrivals (DACA) program in Washington, U.S., November 12, 2019. (Jonathan Ernst/Reuters)

The Supreme Court hears oral arguments on the DACA case today, with a ruling expected next summer. At issue isn’t really the legality of Obama’s grant of work permits and Social Security numbers to some 700,000 illegal aliens, but rather whether President Trump is legally permitted to reverse a policy decreed by his predecessor.

Even if you think the Deferred Action for Childhood Arrivals program was legal (it wasn’t), it was not enacted through the notice-and-comment process mandated by the Administrative Procedure Act for issuing regulations — it was just a memo from then-DHS secretary Janet Napolitano ostensibly outlining prosecutorial-discretion guidelines to her three subordinates who handled immigration matters. The idea that a subsequent administration can’t issue a superseding memo without going through notice-and-comment is ludicrous. As Robert wrote here last month, “the executive had no right to enact DACA on its own, and the courts have no right to stop the Trump administration from correcting course.”

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This should be a no-brainer even for the Democrat justices though, as has become customary, it may come down to Roberts. But assuming the Court rules in favor of the administration in, say, June 2020 — what then? Terminate the whole program immediately, and possibly turn off enough voters in Florida, Pennsylvania, and Michigan to lose the election? Or work with Congress to immediately pass an amnesty with no strings attached, and possibly turn off enough voters in Florida, Pennsylvania, and Michigan to lose the election?

One possibility might be to stop issuing renewals immediately but let exiting work permits continue until they expire, at an average rate of about 1,000 a day. Then call on Congress to finally pass a targeted package that gives DACAs green cards in exchange for, say, mandatory E-Verify (to make it less likely we’ll have DACA situations in the future) and ending the visa lottery (to partly offset the extra legal immigration represented by the amnesty).

Alternatively, the White House could punt until after the election: announce that renewals will continue to be processed, but only through the end of 2020, after which work permits will begin expiring, leaving it to the new Congress and the new (or incumbent) president to work out a deal. Then one of the subjects of the election could be what the shape of such a deal should be. The Democrats will argue for a very expansive amnesty with no trade-offs — not just DACAs, but other people who came here illegally before age 18 but didn’t qualify for DACA, plus all the illegals with Temporary Protected Status. The Republicans could make the case for a balanced deal, one that acknowledges the prudence of legalizing the DACAs but also recognizes the need to limit the fallout of such a measure.

Could the Republicans pull off either approach successfully? The Stupid party’s track record suggests skepticism, but maybe they’re learning.

Mark Krikorian, a nationally recognized expert on immigration issues, has served as Executive Director of the Center for Immigration Studies (CIS) since 1995.

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