New Yorker
By Amy Davidson Sorkin
May 04, 2018
John Kelly, Donald Trump’s chief of staff, last week joined the ranks of senior officials who have reportedly declared that the President is “an idiot,” in this instance because he “doesn’t even understand what DACA is.” (Kelly later said that the report, from NBC News, was “total B.S.”) In fairness to Trump, though, few people in his Administration seem to fully grasp the Deferred Action for Childhood Arrivals program—which has been in place since 2012—much less what it means for the seven hundred thousand young people, known as Dreamers, whom it has shielded from deportation.
Kelly, who is an immigration hardliner, also said, according to NBC, that he had stopped the President from making a “hasty deal” that would have helped the Dreamers; on a separate occasion, he had suggested that anyone eligible for DACA who hadn’t yet signed up for it was, perhaps, just “lazy.” Attorney General Jeff Sessions, when he announced last year that the Administration would phase out the program after March 5th, portrayed President Barack Obama as an outlaw for having approved it in the first place. Sessions called Obama’s act “an unconstitutional exercise of authority”—which it is not really his job to peremptorily assert—and said that he was rescinding it in order to “end the lawlessness.”
It takes more than insinuations about the legitimacy of Obama’s actions, though, to prevail in court. A number of parties quickly challenged the Administration’s decision; so far, its arguments, which have also included claiming that judges have no authority to review the decision to end DACA, have not fared well. In the Ninth and Second Circuits, judges found that the cancellation of the program appeared to be “arbitrary and capricious.” Their rulings scuttled the March deadline, and have allowed DACA enrollees to renew their status. On April 24th, in another blow to the Administration, a judge in the D.C. Circuit—John D. Bates, a George W. Bush appointee—found that the Administration had left the legal basis for its actions “virtually unexplained,” and ordered it to begin enrolling new Dreamers in ninety days’ time if it couldn’t come up with better legal arguments by then.
The delays have offered the Dreamers both continued uncertainty and something of a respite. But the legal fight has now arrived at a critical juncture, and it could quickly turn against them. Oral arguments in Trump’s appeal of the Ninth Circuit case, in which the lead plaintiff was the University of California, will be heard next week. The next stop is the Supreme Court. As with other cases—notably, Trump’s attempt to impose a travel ban—the President’s critics have relied on the incompetence of the Administration and the rectitude of the courts to see the country through. Yet those factors may provide only a temporary safeguard. The Administration’s clumsiness has already prompted others to step in. Last week, Texas, joined by six other states—Alabama, Arkansas, Louisiana, Nebraska, South Carolina, and West Virginia—filed a suit in the Fifth Circuit against the federal government, challenging DACA’s constitutionality. In effect, Texas is suing the Trump Administration for not doing what Trump has said he wants it to do—that is, end DACA. A ruling in Texas’s favor could create new conflicts between circuits which only the Supreme Court can resolve. Given the composition of the Court, and the room for improvement in the Administration’s legal arguments, the Dreamers could lose.
If Trump needs an example of how badly such an outcome can contort a society, one can be found in the United Kingdom, in what has become known as the Windrush scandal. In 2012, Prime Minister Theresa May, who was then the Home Secretary, said that the Conservative government’s goal was to create “a really hostile environment for illegal migration.” To that end, the government began demanding proof of people’s legal status in Britain for many everyday matters—such as visiting a National Health Service doctor, or applying for a job. This posed a particular problem for members of the so-called Windrush generation, who were born in the colonies and moved to Britain after the Second World War. (The Windrush was a ship that carried one of the early groups from the West Indies.) A 1971 law gave those who had arrived prior to that year leave to remain in the nation indefinitely, but provided no definitive documentation with which they could prove that they had done so. (The government destroyed the archive of landing cards in 2010.) The damage the policy had done was largely ignored until last month, when the Guardian documented cases of people who were denied critical medical care, evicted from their homes, or threatened with deportation to countries where, like many Dreamers, they had not lived for decades. The current Home Secretary has resigned, as the government, now facing a political crisis, rushes to pass around blame, Trump style.
The May government and the Trump Administration seem to have willfully misunderstood how much the Windrush generation and the Dreamers have enriched their countries. But the Democrats also need to reckon with their mistakes on DACA. Even as the cases have been moving through the courts, the Democrats have behaved as though they had all the time in the world to act—the removal of the March deadline seems to have led to procrastination. Perhaps they are trying to forget last January’s bungled government shutdown, which they staged in the Dreamers’ name, but which gained them nothing. The Party will need better tactics to secure a permanent legislative fix—a new Dream Act. The midterm elections are just six months away, and how strongly the Party makes its case for preserving DACA may prove crucial in some states; Texas is home to more than a hundred thousand DACA-enrolled Dreamers, many of whom have family members who can vote.
Trump turned his attention to the midterms last week, at a rally in Michigan, where he made it clear that he thinks border demagoguery will provide the Republican Party with another path to victory. “Our laws are so corrupt and so stupid,” he said. “I call them the dumbest immigration laws anywhere on earth.” He told the crowd, “The liberal politicians who support criminal aliens, and they support them far over American citizens—Nancy Pelosi and her gang—they’ve got to be voted out of office!” The 2016 election showed that, if not adequately countered, bigotry and fearmongering can yield crowds, votes, and the power of high office. In that sense, Trump understands DACA very well. ♦
For more information, go to: www.beverlyhillsimmigrationlaw.com
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