As the Supreme Court heard oral arguments in mid-November about whether President Trump can end the policy of Deferred Action for Childhood Arrivals, the court’s five conservative justices signaled their inclination toward allowing the president to do so.
We’re hearing a lot these days about the rule of law. And that’s a good thing. We all need a reminder that no matter how much any elected official appeals to us, no matter how charismatic, no matter how much faith we have in that individual’s intelligence, integrity or chutzpah, our Constitution requires that person to govern according to the rule of law. Contemplating the rule of law might help those of us who are appalled at the prospect that our country might deport more than 660,000 young men and women, whose plight is no fault of their own, understand where to direct our fury.
As North Carolinians, it matters because our state has the seventh largest population of DACA recipients. It isn’t just these young people who will suffer if they lose their DACA status. According to an analysis by The Center for American Progress, North Carolina is home to 24,480 DACA recipients who pay $134.8 million in federal taxes and $81.7 million in state and local taxes. Their spending power is $702.5 million. They own homes, they pay rent, they work in every sector of the economy. (Contrary to President Trump’s tweet that many are criminals, no one with a criminal record qualifies for DACA status.) Moreover, North Carolina is home to 11,600 American-citizen children of DACA recipients. How did we get to this place?
Under U.S. immigration law, anyone in the country without proper documentation encounters great difficulty pursuing an education beyond high school or finding work. They live in the shadows, vulnerable to exploitation and in constant fear of being deported. Deferred Action for Childhood Arrivals provides undocumented young people who were brought into the country unlawfully as children a two-year renewable deferral from deportation and the right to work or attend school during that time. It does not grant them a path to citizenship.
Polls show that seventy-two percent of Americans oppose the deportation of these young people. But Republicans have consistently blocked legislation to address their plight and a polarized Congress seems unable to find any workable compromise to solve the dysfunctional immigration system that created it.
In exasperation, President Barack Obama signed an executive order establishing DACA, even though he himself admitted that he couldn’t “just bypass Congress and change the (immigration) law myself. … That’s not how a democracy works.” In another instance, he said, “I’m not the emperor … My job is to execute laws that are passed. And Congress right now has not changed what I consider to be a broken immigration system.”
As Obama understood, the authority to make law resides with Congress. The authority to enforce it resides with the executive.
That authority to execute the law did allow him to establish priorities for enforcing it. But it could be argued that he went beyond that. Instead of simply declaring they wouldn’t be a priority for deportation, he gave them legal status, which allows them to obtain driver’s licenses, work and pursue higher education, something the immigration law doesn’t do. Many authorities on the Constitution would argue that he overstepped his enforcement authority, actually undermining the law he was supposed to be enforcing. More to the point, if he had the authority to interpret the immigration law so liberally, his successor has the authority to take a different view.
So, the first question before the Supreme Court is whether the court itself has the authority to intervene in what is, by Constitutional mandate, the authority of the executive branch to enforce the laws of the land.
Should the court determine that it has the authority to review Trump’s decision to wind down the program, the administration argues that dismantling it brings enforcement back into compliance with federal immigration law which makes no exception for those brought into the country unlawfully as children.
No matter how sympathetic one is to the plight of young people who have lived in the United States for almost their entire lives, most of whom can’t even remember the countries where they were born, and no matter how much they contribute to their communities or to the economies of the states where they live, it seems highly unlikely the court will block Trump from dismantling DACA.
But it is not the court, or even Trump, where the primary responsibility for this despicable state of affairs lies. It lies with Congress, with the men and women we’ve elected to serve us who care more about playing to their bases than they do about reaching across the aisle to find workable compromises to solve the nation’s problems.
It is at Congress that we should direct our anger and frustration, and it is to Congress that we should look for a solution. We in North Carolina, and the people of California, Texas, Illinois, New York, Florida, Arizona and other states whose economies have grown and prospered thanks to immigrant labor, and whose states benefit from the talent and dedication of these young DACA recipients, should flood the offices of our U.S. representatives and senators with demands that they do the honorable thing.
That would be to pass a law granting DACA recipients’ permanent residency and a path to citizenship before the Supreme Court hands down its decision next June. Trump has said he will sign such a bill. Let’s find out.
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