DACA Decision Legally Flawed, but Policy Implications Are Main Concern


DACA Decision Legally Flawed, but Policy Implications Are Main Concern

Published on June 18th, 2020

To the surprise of most observers, the Supreme Court ruled against the Trump administration’s rescission of DACA. Policy considerations aside, the ruling is legally troubling because President Obama ignored Congressional authority to make immigration law, and initiated the DACA program with a policy memorandum, not a formal Executive Order. The Court ruled, however, that to rescind the policy, the current administration must follow all the formal procedures of the Administrative Procedure Act. The bottom line is that the Supreme Court held that DHS must go through the formal notice and comment procedures in order to eliminate the program, so DACA continues… for now. Of course, Congress can always pass legislation to address the situation.

From a policy perspective, my concern is that the public’s takeaway will be, erroneously, that the DACA amnesty was legal and is here to stay. The Court did not say that, but experience demonstrates that each amnesty, or expectation of another amnesty, encourages more illegal immigration as would-be entrants calculate that our laws will not be enforced. Obama’s DACA policy led to the 2014 border surge by unaccompanied minors from Central America. Congress has passed seven different amnesties in the past few decades prior to the DACA administrative amnesty.

Certainly, DACA recipients, “brought here as children” as we are repeatedly told, present a sympathetic picture. That is why they are used as poster children by open-border advocates who want an amnesty for all 12 million unauthorized aliens, as well as future amnesties for future arrivals. Any congressional relief for the “dreamers” must be coupled with programs to deter illegal immigration, such as enhanced border security and mandatory E-Verify for all employers. If we remove the jobs magnet, the incentive for illegal immigration will largely disappear. Moreover, American voters favor mandatory E-Verify by a 3-1 margin

Secondly, if 700,000 DACA recipients receive green cards,, they will petition to bring in additional relatives so the number of green cards will run into the millions over the long term. As an offset, Congress must pass legislation to curtail chain migration and limit family reunification to only nuclear family members. Chain migration is the main component of U.S. immigration, and immigration is responsible for almost 90% of the population growth in this country. 

Congress and the President may feel political pressure to pursue a legislative solution to the DACA problem. Fair enough, but providing legal status to DACA recipients by itself will only encourage more illegal immigration, leading additional thousands to undertake a very dangerous journey. Deterring illegal immigration and reducing chain migration are necessary components of any deal.

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