Might ending DACA be a first step toward immigration reform?
Earlier this week, President Trump announced that he was giving Congress six months to “legalize DACA,” or Deferred Action for Childhood Arrivals. This controversial government program was created by President Obama’s executive order that delayed deportation of undocumented immigrants who were brought to the United States at age 16 and younger. Trump threatened that if Congress took no action, he would “revisit the issue.” Given other remarks from members of his administration, many took this as a signal that Trump would end DACA within six months.
Preemptive protests against this assumed action began almost immediately. National figures from both sides of the aisle stressed the need for these young undocumented immigrants covered by DACA to receive protection, as many of them had simply accompanied their parents to America and had not chosen to break the law. However, from this point of agreement on policy, the debate devolved into a referendum on DACA itself.
We think this is the wrong direction for our national discussion on this important issue, and we chose to write this article to explain why. We differ in our ideology: Connor is a conservative on most matters of policy, while Andy leans to the left. Nevertheless, we agree that Republicans, Democrats and centrists alike should be on board with ending DACA and replacing it with a legislative solution to our ongoing immigration problem. We both believe that this prospective replacement is preferable to DACA’s continued existence as authorized by an executive order, and while our reasons for that belief differ, it serves as an important starting point for this discussion.
The United States is unique among other nations due to its foundation on the rule of law. Since its beginning, our country has taken as its first principle that “all men are created equal.” As American citizens, we are all accountable before the law. By electing representatives and participating in the political process, we participate in the crafting of the legal rules and regulations that protect our freedoms. Well-made laws provide stable guidelines for the exercise of our liberties that do not vary from person to person. The even measure of our law ideally allows us all to pursue happiness from the same starting point.
In order for us to maintain a fairly applicable system of law that is accountable to the American people, Congress should make the laws that govern us. The framers of the Constitution understood this when they explicitly granted Congress “all legislative powers.” In contrast, the President’s job is to execute the laws Congress has passed. However, at times the Congress has granted the President the limited power of issuing executive orders, allowing Presidents from both parties to make decisions on everything from hunting practices in United States territories to military acts in other countries.
We choose not to speculate about President Obama’s motivations in signing the executive order that created DACA. He may well have considered DACA to be within his constitutional purview, as a matter of executive discretion regarding enforcement priorities.
The fact remains that DACA does affect the legal status of a certain class of undocumented immigrants by allowing them access to many of the rights of American citizens. As such, it has the force of law while in effect, but also can be rescinded at any time, based upon the desires of the President. This creates a situation where the status of millions of people can be altered at any moment.
This situation requires a remedy. Those who are currently under DACA’s purview deserve better than a flimsy executive decree that is unconstitutional at worst and easily repealable at best. DACA increases uncertainty and decreases the quality of life for the undocumented immigrants it seeks to help. The far better solution is the one proposed by our nation’s founders: the rule of law, through the legislative process.
By implying that he will end DACA, the President is forcing Congress’s hand on a hotly contested policy issue with Election Day implications—exactly the sort of issue that Congressmen enjoy talking about but refuse to act on. A legislative solution to our immigration woes is a long time coming and is beyond necessary.
Some in our country would prefer that DACA be legalized in its current form by Congress. Others argue that Congress should allow the President to end DACA and commit to strictly enforcing existing immigration law barring illegal entrance into the United States. Embracing one of these tactics over the other, however, will deepen our country’s sizable political divide on this issue, and do very little to resolve the myriad of issues surrounding immigration.
Moreover, both approaches are markedly flawed. Legalizing DACA would likely incentivize future illegal immigration and our laws should not seek to reward those who break them. Alternatively, strict enforcement comports with the rule of law, but mandates deportation for all illegal immigrants currently residing in the United States—a solution that is impractical and costly at minimum, and would uproot the lives of many undocumented workers who contribute to our economy.
As two individuals from opposing sides of the aisle, we would like to offer a bipartisan model solution that should satisfy both parties. To replace DACA, Congress should pass a law featuring a limited period of amnesty for all illegal immigrants residing in the United States who have not committed felonies. For a year following the passage of this bill, illegal immigrants could visit a website, fill out a form, pay a small fee, and begin the process of becoming a United States citizen or acquiring a temporary visa or green card.
After that year, this model bill would require the United States to strictly enforce its existing immigration laws, deporting any undocumented immigrants discovered within America’s borders who chose not to come forward during the amnesty period. The bill would also provide for the appointment of a joint select Congressional committee to investigate and recommend solutions for better border security. In addition, the law would remove bureaucratic barriers to speedy authorization of citizenship for those who apply, making legal immigration easier.
This model law would satisfy the major stakeholders on immigration and would be a better solution than the legally shaky and politically divisive system created by DACA. As a liberal and a conservative, we agree that it is time for Congress to come together and act to solve our immigration crisis.
Connor Mighell and Andrew Smith are both third-year law students at The University of Alabama School of Law. Connor is a regular contributor at Merion West and the curator of “Five in a Flash,” a weekday newsletter. Andrew has previously worked in the South Carolina House of Representatives and for South Carolina Governor Nikki Haley.