This past week’s headline was the US administration’s decisions to phase out the Deferred Action for Childhood Arrivals (DACA) program, but once again our news media has not done a terribly good job of covering what the heck the program is. While this is a topic that is understandably and justifiably under a great deal of debate and attention, I thought an unbiased look at what’s happening might be useful.
DACA applies to individuals who were illegally brought into the US, typically by their parents (and they could be up to 30 years of age to apply for DACA, provided they were younger than 16 when initially arriving). Prior to 2012, these individuals were subject to the same deportation rules as their parents. The argument at the time was that these individuals had, in many cases, only ever known the United States as home, and that deporting them was, in effect, sending them to what to them would be a foreign country. The program provided for, as the name implies, “deferred action,” meaning the US would delay action against these individuals for some unstated period of time, and would issue renewable two-year work visas so that they could legally work in the US, attend school, and so on.
DACA is not a law; it is an administrative policy enacted by then-President Barack Obama. It was issued by a policy memorandum via the Secretary of Homeland Security to US Customs and Border Patrol, US Citizenship and Immigration Services, and US Immigration and Customs Enforcement. Notably, DACA was neither an executive order nor an executive memorandum, which do carry the weight of law. Instead, the administration relied on discretionary enforcement, a fundamental principle of US law. In essence, discretionary enforcement means the executive does not have to enforce the laws passed by the legislature. It is one of the checks that the US executive branch has on the US legislature, and it is often controversial – and often ends up in court.
DACA was especially controversial at the time because opponents – primarily but not entirely split along party lines – felt that it overstepped discretionary enforcement, and therefore overstepped the bounds of the executive branch’s authority. Rather than simply refusing to enforce a law – e.g., deporting individuals – DACA offered a remedy, in the form of 2-year renewable work visas, contradicting immigration laws passed by Congress. There’s also an argument that, by refusing to enforce a law, the Executive was thwarting the will of the Legislature, and therefore the people it represents, but that’s something we never got a court ruling on (and courts tend to defer to the Executive when it comes to discretionary enforcement).
Now, I want to stress that I’m not coming down for or against DACA per se. I know individuals who have benefited from the program and who, in turn, have benefited their communities. I’m attempting to ignore those very real-life traumas and consequences, and focus solely on the legal aspects.
DACA was passed at what was, at the time, a height of Congress’ inability to even begin to address immigration law. The President’s action was seen by many as a, “well, if Congress won’t address this, I will,” which is a not-uncommon attitude amongst modern US presidents. The Trump administration’s action, to essentially end the program in March 2018, can be seen as an attempt to kick the problem back to Congress – where it arguably, to some, belongs, as Congress, not the President, represents the US people. It’s seen by supporters as a kind of a reverse attitude, one of, “I’m going to put a lot of pressure on you to fix this,” from the administration. Again – from a cold-blooded, legal perspective. Additionally, several state attorneys general were threatening to sue over DACA, and the US Attorney General stated he wouldn’t defend the policy. DACA does stand on shaky legal ground, and it’s unknown how a court might feel about it.
There’s an argument that the government – Executive and Legislature together – have created an essentially no-win situation for the People. The government, collectively, has created a program whose very name – Deferred – implies a jury-rigged, temporary “fix.” With many people now on that program, the current Legislature is faced with difficult choices. Allow the program to end, screw up over 800,000 lives, and basically go back to square one – which was already not a tenable position for everyone, which is why we got DACA in the first place. Or, implement something essentially exactly like DACA – and your own political leanings will tell you if that’s acceptable or not. Or, implement something else, and potentially impact a swath of people’s lives who’ve essentially been living in limbo all this time – whilst working and paying taxes as if they were legal permanent residents. Again, your own leanings will tell you what’s acceptable there.
It is generally recognized that current DACA beneficiaries aren’t totally “at fault” here, any more than any other minor child is “at fault” for where their parents drag them. Your political leanings may tell you that those kids should have been deported regardless, and that’s fine – you’re certainly entitled to that perspective. That isn’t what happened, though, and it still leaves us, as a country, where we are. The Deferred in DACA was never actually addressed – “deferred” until when? And when that time came, what would happen? The Obama administration created a limbo situation that was, eventually, going to have to be addressed in some fashion. Legally, DACA was a poor way of addressing a very real issue.
So now Congress will have to decide if, and how, to address the same issue. Only now many of these “DACA kids” aren’t “kids” anymore (technically, anyone under 31 on the program’s inception could apply, so many weren’t “kids” in the first place, although they did arrive in the US younger than 16). That was five years ago – many are now adults, holding down jobs, who have bought homes, who pay taxes, and so on. The oldest DACA recipient could be approximately 35 at this point, and could have been living here for most of their lives, or even around 19 years (assuming they were just under 31 at program inception and had been in the US since just under 16 years of age). Many have jobs, kids, homes, and have even started businesses – so the human disruption is quite real.
If every DACA beneficiary was a firefighter or other hero, the political conversation would probably be swift. Much of the current conversation therefore revolves around how many DACA beneficiaries are criminals (the definition of which, for DACA purposes, can include multiple different kinds of misdemeanor, or a track record of broader misdemeanors). This is where conflicting media reports arise, and where I personally have trouble discerning actual facts. You see headlines about a “30% surge” in DACA recipients losing their status due to crimes; this allegedly reflects an change in 2017 (so far) to 622 persons from a 2016 count of 848, which was up from 460 in 2015 and 153 in 2014. I find words like “surge” to be intentionally inflammatory, preying on people’s fears, so I’ve included the numbers here so that you can make your own determination. All in all, USCIS claims 2,139 DACA recipients have lost their amnesty since the program’s inception. That’s about .002% depending on whose numbers you believe for the total DACA count (I’ve seen between 800,000 and over 880,000; the .002% is based on the lower number of 800,000). In any system, .002% is barely worth mentioning, so I kind of interpret the criminal rhetoric as fearmongering – but you can decide how you feel about that.
For what it’s worth, USCIS claims 844,931 total initial applications, 606,264 total renewal applications, 741,546 total new approvals, and 526,288 total renewal approvals. I’m still trying to figure out where the oft-quoted 800,000 number comes from. Another 43,121 initials and 75,205 renewals are pending; if you assume 100% approval that would be 784,667 total first-time applications (which would include those individuals who eventually also renew). Many are from Mexico; almost all are from Central and South America, with a relative handful from the Caribbean or other countries. South Korea sent the fifth-most, for example.
784,667 people represents about .002% of the US population.
The Center for American Progress surveyed around 3,000 DACA recipients (about .003%, which may not be statistically significant), and you’ll see many statistics quoted from that survey: average wage of $17.46, 72% in higher education, 80% with driver’s licenses, etc. It’s a small survey, though, and it itself indicates that a valid margin of error could not be constructed due to the small sample size and relatively unknown total cohort size. Indeed, if you can argue that a criminal rate of .002% is inconsequential, you probably have to rule this entire survey as inconsequential also. Actual useful facts are thin on the ground in this issue.
There are also reports (and some evidenced based on government forms) that USCIS has advised DACA recipients to not disclose some crimes they may have committed, such as not disclosing illegally-obtained Social Security numbers. Employers have been assured that providing a DACA applicant with proof-of-employment will not result in illegal employment action being taken against the employer. These advisories, for some people, are problematic, and further complicate an already complex political situation. Again, your own leanings will tell you how you feel about these. I will point out that it’s nearly impossible to find unbiased sources on this, particularly when the USCIS itself is accused of bias in this matter.
It is a complicated issue, with many strong opinions on a wide spectrum. Before you form yours, please do what research you can and ascertain what facts you can. Be skeptical of facts provided to you by your favorite media source; try to track down origin sources when possible. This is an area what what people believe has become more important than what facts are available.
And again, I’ve tried not to address the morality of the situation. Morality is personal; morality isn’t encoded into Federal law, exactly. How you feel about the situation will likely have a stronger bearing than facts – but at least try to arm yourself with what facts are available and verifiable.
Now, I’d like to engage in some political gaming, because almost nothing in this situation adds up.
First, it’s odd for a President to reverse policy because his AG threatens to not defend it in court. I get that Trump likely doesn’t want another firing on his team. I get that Sessions was a critic of DACA when he was a Senator. It’s still weird. The AG should normally follow his boss’ directions, and although Trump campaigned on cancelling DACA, he’d seemed to chill out a bit once he got into office and seemed to recognize the human consequences.
It is doubly weird for a President to toss an issue to Congress, after a former President – regardless of party – managed to wrest power from Congress. Presidents tend to hoard executive power and almost always try to get more of it. Sure, Trump isn’t a professional politician and might not have that attitude, but it’s still weird. And I know this issue plays to Trump’s base, as he used immigration as a hot button throughout his campaign. Still feels weird.
This almost feels like a goad to Congress, as if Trump can drop this hugely divisive issue on them to see if he can force them to pass a law of some kind – something he’s been unable to make happen thus far. The DACA issue is widely regarded as a poison pill for the GOP; even Paul Ryan urged Trump not to end the program, although Ryan was a critic when Obama instituted the policy. Granted, Trump isn’t exactly a GOP member himself, which makes me wonder if this is just a fuck-you to Congress in general. Which is weird, even if it’s the new normal.
This happens as Trump is trying to push other major legislation through Congress, including a budget, tax reform, and whatever is happening with health care these days. Of course, we also saw Trump this week cut a deal with Democrats to kick the debt ceiling issue to December. Which is weird. It’s like, he could have just left DACA in place, and if a court invalidated it, it’d naturally land in Congress’ hands anyway. So weird.
Politically, so little of this makes sense in the classic manner. What’s a shame is the people caught up in it.