The Wall Street Journal published an article this week that brought together all of the leading strawman arguments, from all of the usual senators, on a legislative plan to replace Deferred Action for Childhood Arrivals (DACA).
By way of background, as CNN reported on Tuesday, September 5, 2017:
The Trump administration ... formally announced the end of DACA — a program that had protected nearly 800,000 young undocumented immigrants brought to the US as children from deportation.
The Department of Homeland Security will stop processing any new applications for the program as of Tuesday and rescinded the Obama administration policy, Deferred Action for Childhood Arrivals.
On September 14, 2017, I detailed what I saw as the likely path that Congress will have to take in order to craft a legislative response to address the status of the 690,000 aliens who currently have DACA, but who will gradually lose that status over the next two-plus years. Congress is acting true to form.
The Senate Judiciary Committee held a hearing Tuesday on "Oversight of the Administration's Decision to End Deferred Action for Childhood Arrivals", at which my colleague Jessica Vaughan testified.
The Journal's article covered that hearing, and in particular the responses of three key senators on any possible remedial legislation. Again, true to form, each presented their own facially neutral but politically weighted talking points on the issue.
The first, and most defensible, was Sen. John Cornyn (R-Texas), who, the Journal reported:
[S]aid young people "should not be penalized for being brought here illegally through no fault of their own." But he added what he called a "big caveat."
"Before we provide legal status to these young people, we must reassure and actually regain the public confidence that we're serious when it comes to enforcing the law and securing our borders," he said.
There are two strawmen in this passage. The first is that all DACA recipients are "young people". As Newsweek has noted: "In order to apply for DACA, immigrants had to be younger than 31 on June 15, 2012." This means that the oldest DACA recipients are now 36 years old, and are closer to middle age than to "youth".
The second is that those DACA recipients had to have been brought to the United States "illegally through no fault of their own". To have been granted DACA, however, an alien simply had to have entered before the age of 16 — there was no requirement that the alien have entered in the custody of a parent or other guardian, or to have been a toddler when he or she got here. I would note that many of the asylum cases that I heard as an immigration judge involved threats of violence from gang members of tender years, some as young as 12. "Youth" is a relative term as it relates to different cultures.
Next, the Journal quoted Sen. Lindsey Graham (R-S.C.), who asked "administration officials" at that hearing: "How would you feel if you were one of those Dream Act kids knowing the only thing between you and certainty is Congress?" As the Journal reported: "When the officials stumbled trying to reply, Mr. Graham joked, 'Never mind. I withdraw that question.'"
As a staffer and congressional witness, I can assure you that defiance is never the correct response (and sometimes neither is honesty), no matter how periphrastic or risible any member's question (or statement-question) is. That said, the correct response should have been: "Well, it is your job, and the reason that you got elected."
The problem with DACA is that the executive (President Obama) usurped Congress's prerogative to write the immigration laws of the United States. Attorney General Jeff Sessions wisely quoted George Washington University law professor Jonathan Turley on this issue when he (Sessions) issued his statement on the end of DACA. As Turley explained to the House Judiciary Committee in discussing DACA:
In ordering this blanket exception, President Obama was nullifying part of a law that he simply disagreed with. There is no claim of unconstitutionality. It is a raw example of the use of a "dispensing power" over federal law. It is difficult to discern any definition of the faithful execution of the laws that would include the blanket suspension or nullification of key provisions. What the immigration order reflects is a policy disagreement with Congress. However, the time and place for such disagreements is found in the legislative process before enactment. If a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense. What is most striking is the willingness of some to accept this transparent effort to rewrite the immigration law after the failure to pass the DREAM Act containing some of the same reforms.
I took both Criminal Procedure and Environmental Law from Turley at GW, and I can assure you that he's not a conservative — you are unlikely to find him at a Federalist Society meeting or roaming the halls at CPAC. If he says President Obama went too far, he is speaking as an objective observer. And with respect to the difficulty of the task facing Congress generally and the senior senator from South Carolina specifically, I can also assure you that the Palmetto State is populated by any number of politicians who would be willing to relieve Sen. Graham of that burden.
The strawman is, however, inherent in the question. To reiterate, we are not talking just about "kids". More importantly, however, remaining in the United States is not the only "certainty" that is available to DACA recipients. Countries have an obligation to accept their nationals, and any DACA recipient can always seek the "certainty" of repatriation. In Graham's mind, however, the only "certainty" for a DACA recipient is some sort of permanent status in the United States.
Finally, there are the statements of Sen. Dick Durbin (D-Ill.). The Journal quotes Durbin as stating: "Please do not put the burden on the Dreamers to accept every aspect of comprehensive immigration reform (in order) to have a chance to become citizens of the United States. That's too much to ask."
There are many different strawmen in this one sentence. First, no one is asking the "Dreamers" to do anything. Rather, it is a subcategory of "Dreamers", that is DACA recipients, who are themselves asking for amnesty in the United States.
Second, any "burden" imposed by beefed-up immigration enforcement provisions would not be placed on the DACA recipients themselves. The legislation proposed as a companion to a so-called "DACA-fix" (mandatory e-Verify, the No Sanctuary for Criminals Act, Kate's Law, much of the Davis-Oliver Act, the RAISE Act, etc.) simply provides the tools that would be needed to ameliorate the deleterious effects of a DACA amnesty.
Ironically (and contrary to Durbin's assertions), however, these laws would actually benefit DACA recipients should they gain a more permanent status. Specifically, these proposals would help limit illegal immigration to the United States, and thereby limit the number of workers who would be competing for the same jobs as those newly legalized DACA aliens. This "burden" would actually be borne by non-DACA recipients who are here illegally, and a prospective illegal flow that would never materialize. Durbin almost definitely knows that, but he also understands that there is little or no constituency (yet) for the real aliens who would be affected. Hence, the rhetorical legerdemain.
The most famous strawman is, of course, the Scarecrow from the "The Wizard of Oz". And his most notable characteristic was the fact that he wanted a brain. We can all hope that, as the DACA debate unfolds, our elected representatives use theirs to see their way through the bombast to craft workable legislation that benefits the American people, not just a selected few.