Why rescinding DACA is about the Constitution
Legal expert Jonathan Turley explains the rationale behind President Trump's decision
The current predicament facing President Obama’s Deferred Action for Childhood Arrivals (DACA) was foreseeable. It has little to do with its policy substance and everything to do with its implementation. It’s a textbook case of executive overreach, the enactment of major immigration policy through executive action as opposed to legislation—the proper and constitutional channel. Months ago, a group of Republican state attorneys general notified the Trump administration that they intended to challenge the constitutionality of DACA through the judicial system unless the administration ended the program. Many legal experts, including DACA supporters, believed that the executive action was unlikely to survive this legal challenge.
Consequently, President Trump has rightly decided to phase out the program. Now, the political left has launched a barrage of criticism toward the president, a response that is misguided considering DACA’s shaky legal standing and the fact that the president is wisely delaying the phase-out for six months. The president has repeatedly expressed compassion towards the undocumented children population, and the delay provides Congress with a generous window of time to fulfill its responsibility to legislate and work out a long-term solution, something DACA itself never offered.
This is not a betrayal to the voters who elected President Trump. In fact, recent nationwide polls show that roughly three-quarters of Americans who supported his campaign also support addressing the legal status of children who were brought to the U.S. illegally through no fault of their own. You can count me as one of them.
The question for Democratic Congressional leaders is whether they sincerely want to pass a permanent solution or instead use it as a political wedge issue.
The question for Democratic Congressional leaders is whether they sincerely want to pass a permanent solution or instead use it as a political wedge issue. They had ample opportunity to address the problem between 2009 and 2010, when they controlled the White House and held a supermajority in the Senate, meaning they didn’t need a single Republican vote to pass any legislation they wanted to. Instead, they failed to act. By the time they did take a vote in late 2010, five Democrats voted ‘no,’ defeating the bill.
Now Congress has a six-month window to provide a permanent bipartisan solution, and I hope reasonable-minded members in the minority will join with Republicans to be part of the solution.
In the week ahead, I’ll be introducing legislation that will resolve the uncertainty facing undocumented children and young adults. This conservative solution would provide a rigorous, merit-based pathway for young undocumented immigrants to earn conditional legal status by requiring them to be employed, to pursue higher education, or to serve in our Armed Forces. They would be subject to extreme vetting, including strict criminal background checks and the submission of biometric and biographic data. They would lose their legal status if they become dependent on public assistance, fail to maintain a clean criminal record, or fail to honor their agreement to pursue one of the three merit-based pathways.
Undocumented children would not be able to “cut the line” or receive any special treatment or privileges over the immigrant children who have been in the United States lawfully. In order to continue to stay in the United States and become eligible for a green card down the road, young undocumented adults must pay off any tax liabilities and either graduate from a higher education institution, serve honorably in the military, or maintain gainful employment. Simply put, they must demonstrate they are productive and law-abiding members of our country to earn the opportunity to stay in the United States on a permanent basis.
This is consistent with the basic American value that children should not be punished for the actions of their parents. That’s why many conservatives, including President Trump, believe that we can and should take a different approach for undocumented children than we would for undocumented adults who did come here on their own accord.
For the many young undocumented immigrants who were brought here as small children, America is the only home they’ve ever known. The vast majority of Democrats, Republicans, and independents believe they should have a chance to remain here and contribute to the nation to their fullest ability.
President Trump and Congress now have the opportunity to facilitate a fair and commonsense deal that their predecessors failed to deliver on. President Trump showed good judgment by providing Congress with a window to act. I hope my colleagues in Congress will also demonstrate good judgment and compassion for these children by producing a prompt and permanent solution to this long-term problem.
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