Instead of ‘shitholes,’ this is the immigration conversation we should be having

Here’s the real conversation that virtually no one is talking about and should be:

DACA (an acronym for Deferred Action for Childhood Arrivals) was an immigration policy set in place by the Obama administration in 2012 that allowed for eligible individuals who entered the country illegally as minors to received “deferred” status. In legalese, this means that the action of deporting these individuals was “deferred” for a renewable period of two years. These individuals could also be eligible for a work permit, but importantly, DACA did not change their illegal status. In other words, they did not become citizens.

DACA was an unconstitutional executive order issued by the Obama administration. The Constitution provides exclusive legislative power solely to Congress. Whether or not DACA as a policy is a good idea, that political discussion is irrelevant to the constitutional analysis of enactment via executive order.

Ultimately, the Supreme Court was split in 2016 on the constitutionality of DACA and its companion DAPA, which covered some parents of children who are lawful permanent residents or citizens. Because the Supreme Court was split 4-4 (due to Justice Antonin Scalia’s vacancy), the lower court of appeals’ decision that DACA was unconstitutional remained in place, holding that former President Barack Obama had indeed exceeded his executive authority.

Thus, although relatively little happened in terms of actual reported deportations of DACA recipients because the Department of Homeland Security continued a review of the program as a whole, President Trump took the question out of the executive branch’s hands by rescinding the DACA executive order in September 2017.

Concurrently, we also have a multiple-times-failed legislative measure referred to as the Dream Act. This is an even more shoehorned acronym, standing for the Development, Relief, and Education for Alien Minors Act. But the term “Dreamers” makes a nice sound bite. The act was first introduced in the Senate in 2001 by none other than Sen. Dick Durbin, D-Ill., who has made headlines and made it into Trump’s Twitter feed recently. (But we don’t want to go back down that shithole.)

The Dream Act has failed to pass Congress the multiple times that it has been introduced, and if passed, it would have provided a pathway and process for qualifying Dreamers to obtain conditional residency and, if further eligible, permanent residency (a green card).

Now here we are, with a failed but potentially viable Dream Act, a rescinded DACA, and the Trump administration firmly and constitutionally giving the policy issue back to who it properly belongs: Congress.

The conversation we should be having now is what immigration policy should America have related to individuals who are in the United States illegally but arguably have broken no laws, because they were brought here by family members when they were minors. We do need to deal with the more than 800,000 reported people who, as of 2017, were enrolled in the DACA program. And what about DAPA and chain migration? What makes reasonable sense to both secure our borders but also allow for reunification of families that do not pose a security risk?

These should be nonpartisan questions. Conservatives and liberals alike should be able to agree on a few fundamental premises:

1. The Constitution does require legislation from Congress to address this problem.

2. American government’s chief constitutional obligation is to protect its own citizens, and any legislation must be in furtherance of this mandate and must not contravene this obligation.

3. We do need an immigration policy that reasonably provides a solution to the Dreamers and immigration as a whole issue.

4. There are always other collateral interests at stake and perhaps some inherent bias on both sides, but both sides should approach the negotiating table attributing good faith to the other party and actually discuss things reasonably.

This is what I see Trump doing. He is getting everyone to the negotiating table and is willing to sign into law a legislative solution that will serve a twofold purpose: allowing a pathway to residency for Dreamers while still ensuring American citizens are safe and secure.

Importantly, the legislation does not have to grant citizenship or even provide a pathway to citizenship for Dreamers or chain migration. There is no “right” for a noncitizen to obtain citizenship in any country. Thus, no one may become a citizen absent a legal mechanism and process. This is not being nationalist or lacking compassion, but rather recognizing the fact that the government’s primary job is to operate in the best interests of its citizens. All other good it might do must not come at the expense of the citizens’ interest, otherwise the government is quite literally in the position of a conflict of interest.

Congress can solve this problem by providing a pathway to permanent residency for eligible individuals, which would include a work permit. Eligibility would need to meet certain criteria, including vetting and ensuring a lack of criminal or violent history, ties to terrorist groups, and any number of other safeguards Congress wishes to impose. That just makes sense. We require those measures and more even for citizens applying for a security clearance. If the Democrats are serious about operating in good faith, they would agree that government must fulfill its obligation to protect its citizens.

Also, permanent residency does not exclude the legal option and jurisdiction of Homeland Security to deport a green-card holder if that person commits a qualifying (i.e. serious) crime and pleads guilty or is convicted.

As a criminal defense attorney, I have represented individuals who are green card holders who have been potentially subject to adverse collateral immigration consequences because of the criminal charges against them. If Republicans are serious about operating in good faith, they would agree that we do need to deal with the people who are already here illegally and contributing positively to our community, and we can do that through permanent residency or another process.

This is just the beginning of the tough conversation Congress needs to have. President Trump is wise to require a compromise and be, himself, willing to compromise on the process as long as that process does not compromise the integrity of our border security and safety of Americans. This is rational, reasonable, and good negotiation.

Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is an attorney and professor of constitutional law at Colorado Christian University, fellow at the Centennial Institute, radio show host in Denver, and the author of The Legal Basis for a Moral Constitution.

If you would like to write an op-ed for the Washington Examiner, please read our guidelines on submissions here.