Action Deferred

—Barack Obama, July 25, 2011

In the summer of 2012, when President Obama created the program known as DACA—Deferred Action for Childhood Arrivals—he called it a “temporary stopgap measure.” He had promised not to circumvent Congress and impose a solution on his own authority, but the temptation was too great for him. With one executive order, his administration created, authorized, and implemented a program governing the resident status of undocumented adults who had come to the United States as children.

President Obama was right about the need to address the plight of hundreds of thousands of “dreamers,” as the sons and daughters of illegal immigrants are known. The term comes from the Development, Relief, and Education for Alien Minors Act, which was first introduced in 2001. (About 3.6 million immigrants fall into that category, though only about 800,000 are enrolled in the DACA program.) He had a fine moral case for action, but the action he settled on was flagrantly unconstitutional—as he himself had averred just a year before. As always, his strategy for negotiating a deal with a divided Congress was to hector and disdain his opposition and, when they proved recalcitrant, to make law by executive order.

We are still living with his “temporary” act of lawlessness in 2018. By pretending to fix the problem, Obama in essence obviated the need to solve it permanently, with the result that it remains unsolved.

Six months ago, the Trump administration announced that it would end the DACA program on March 5, 2018. It was an unpopular decision but the right one: The hope was that terminating the program—hence making nearly 800,000 dreamers once again vulnerable to deportation—would motivate Congress to find a permanent solution.

It might have worked, too. But what the administration hadn’t counted on was the federal court system. On January 9, U.S. District Court Judge William Alsup granted a request by several California cities and the University of California system to stop the administration from phasing out the DACA program. The idea that the president has the authority to create immigration law by executive fiat but somehow doesn’t have the authority to terminate what it created is the sort of legal inanity that gives progressive jurisprudence its unenviable reputation.

The Justice Department asked the Supreme Court to rule on the case directly, but the court denied the request on February 26, meaning the case must now go through the liberal-friendly Ninth Circuit Court of Appeals. This will take months. The Supreme Court will then likely rule in the administration’s favor, but the case won’t be heard until the Court is back in session in October and a decision wouldn’t be handed down until early 2019.

The California plaintiffs mean well, just as Obama meant well in 2012. But the consequence of their do-gooderism has been to let Congress put the problem off again and again. The Trump administration’s March 5 deadline came and went, and so those 800,000 noncitizen Americans must soldier on, not knowing if they belong to the country of their youth and adulthood—the United States—or some other country with which they have little or no experience. The great majority of these young people are productive and law-abiding residents. One need not be an open-borders zealot to recognize the idiotic cruelty of the government’s dithering.

The caucuses in both House and Senate were inching towards a deal before Judge Alsup’s decision, and even after it there was hope for some compromise. But once it became clear that the deadline wasn’t a real deadline—and particularly once the Parkland, Florida, shooting shoved every other issue out of the headlines—there was no chance for a deal.

The dreamers are once again the victims of irreconcilable political demands. The administration is happy to sign a deal giving them a path to citizenship, but it also demands a reduction in immigration levels and the abolition of the Diversity Immigrant Visa Program (a lottery that awards green cards to up to 50,000 foreigners per year). Immigration restrictionists in the House GOP, meanwhile, demand a substantial increase to border security. None of these demands is unreasonable, but Democrats in the House and Senate have concluded—probably correctly—that the lack of resolution on the issue gives them an advantage in the midterm elections. They’re demanding a bill extending DACA and including a path to citizenship, with only modest increases in border security, something they cannot get.

In short: no deal, and no real possibility of a deal. The GOP leaders in the House and Senate, we’re told, have concluded that the votes aren’t there for a permanent DACA solution. Other issues clamor for attention, especially gun-related bills, and gone is any patience for a DACA compromise.

There is some hope that lawmakers can merely extend the DACA program for one or perhaps two or three years, by attaching an amendment to the forthcoming omnibus spending bill. That bill must be signed into law by March 23 to avoid another government shutdown. A DACA extension would be a more sensible and humane solution than simply letting the Supreme Court rule on the legal matter of whether the administration can terminate the program if it wishes to. That ruling will mean hundreds of thousands of residents—productive and law-abiding people—will suddenly be in fear of deportation to a country they barely remember, or don’t remember at all.

Virtually no one in Congress wishes the dreamers to be deported. But their not wishing it won’t prevent it from happening. If Congress does nothing and the Supreme Court agrees with the administration, the DACA program will terminate. We will be right back where we were on January 8 before the California judge butted in.

Much of this problem is the direct result of Barack Obama’s impatience with the American political system. He could not abide the sluggish pace and untidiness of deliberative democracy and had to fix the problem by the force of his will. But that’s not how our democracy functions, and that’s not how our Constitution is written.