A Peek into the Democrats' DACA Playbook

For the president, the art of "no deal"

By Andrew R. Arthur on January 25, 2018

The fortuitous discovery of secret Confederate battle plans wrapped around cigars, which had been carelessly dropped near Frederick, Md., likely turned the Civil War battle of Antietam. It's possible that similar plans, relating to the Democrats' legislative positioning on DACA, were published in yesterday's Wall Street Journal by columnist William Galston.

According to the Journal's website:

William A. Galston writes the weekly Politics & Ideas column in the Wall Street Journal. He holds the Ezra K. Zilkha Chair in the Brookings Institution's Governance Studies Program, where he serves as a senior fellow. A former policy advisor to President Clinton and presidential candidates, Galston is an expert on domestic policy, political campaigns, and elections. His current research focuses on designing a new social contract and the implications of political polarization.

It is no slight to Mr. Galston to say that he normally brings a liberal perspective to the Journal's editorial pages, as his biography would suggest.

His January 24, 2018, column was titled captioned "The Art of the Immigration Deal", with the subhead "Phase One: DACA and the wall. Phase Two would involve more fundamental reform." His biography and position would also suggest that he is tied into decision-makers on the Hill, and that his points are not idle musings but actually represent the Democrats' view of the way forward on immigration legislation.

In that column, Galston asserts that the idea of a "border wall" is not popular with the public, but is critical to the president's promises to his base:

In all, only 37% of Americans think adding a substantially expanded wall on the southern border is a good idea. But we have reached a point at which the sentiments of the majority are politically secondary. It is unimaginable that Mr. Trump will break faith with his supporters on this matter. Any deal, broad or narrow, will have to acknowledge this reality.

In contrast, he asserts there is broad public support to legalize beneficiaries of Deferred Action for Childhood Arrivals (DACA). Interestingly, he concedes that "there is merit to the Republican argument that granting permanent status to DACA recipients without fixing the flawed system that helped create this situation would be self-defeating." It is his proposal for how to fix that "flawed system" that likely reveals the Democrats' view of how immigration legislation should best play out.

Specifically, he states:

The immigration issue should be addressed in two stages. Phase One would be a focused bargain: regularize the status of DACA recipients while appropriating the funds needed to secure the border — with a wall where needed. As Marc Short, the White House director of legislative affairs, has acknowledged, this agreement should include not only the young people who already signed up for DACA but also those eligible for the program who missed the signing deadline, whether from fear, negligence or lack of information. For their part, Democrats would be equally generous, agreeing to full funding for border security, not just a down payment.

Phase Two of an immigration solution would include a wider range of issues. Republicans are eager to end the diversity lottery program, enhance enforcement in the workplace, and reorient policy away from family reunification and toward a merit-based metric of individual contribution. For their part, Democrats want to regularize the status of immigrants who came to the U.S. illegally and to repair arbitrary and demeaning features of the current enforcement regime. Both parties have a stake in reforms that would expand opportunities for new immigrants to learn English and acquire a basic knowledge of American history and government.

There is so much wrong with the assertions in the preceding two paragraphs that it would take an entire backgrounder to address them. Suffice it to initially state that "border security" is a years-long effort, and many Democrats believe that if they play their cards right they will control one, if not both houses, in the 116th Congress that starts next January. "Full funding" promised today under this scenario would likely not be appropriated in 2019, and the Republicans would be left with a rubber check, not meaningful immigration enforcement.

Balance that against the costs of "regularizing the status" of aliens who would have been eligible for DACA, but failed to sign up. The Migration Policy Institute estimates that 1,326,000 aliens would have met the criteria to apply for DACA, but the Pew Research Center states that there are currently only 690,000 DACA beneficiaries. This means that more than 600,000 additional aliens would be eligible to apply for the status proposed by Galston, which would create significant burdens for U.S. Citizenship and Immigration Services (USCIS).

To explain: If legislation were passed to regularize in the status of current DACA beneficiaries, USCIS could do a "one-to-one" match of DACA beneficiaries and applicants for the new status, that is, it could fairly easily verify that the applicant (1) is who the alien says he or she is and (2) currently has DACA status. The processing of those applications would be simple, albeit time consuming and somewhat costly.

Requiring USCIS to accept brand new applications from aliens who were never DACA beneficiaries would be much more costly, and much more complicated, because it would require the agency to verify the identity and eligibility of those applicants, most if not all of whom are not currently known to the agency. Further, the possibilities of fraud in the application process under this proposal would be much higher, as aliens would have incentives to lie about their age and when they entered the United States. If required to focus on those applications, the agency's ability to adjudicate other applications (such as immediate relative visa petitions) would suffer. Simply put, the losers under this scenario would be aliens who actually followed the rules.

Moreover, as I have noted previously, border security means much more than just a wall along the Southwest border and additional Border Patrol agents. While the presence of a wall would have a deterrent effect, and additional agents would have a deterrent effect and add enforcement capability, to have "border security" you really need to minimize the number of aliens seeking to enter the United States illegally.

The best way to deter and prevent the illegal entry of aliens into the United States is to turn off the "jobs magnet" that draws them here to begin with, which would require a mandatory E-Verify system, as my colleague Mark Krikorian has explained.

It would also require meaningful asylum and "credible fear" reform. Every month, thousands of aliens enter the United States illegally and when apprehended, assert a fear of harm if they were to be returned to their homes. Because of the lax standards governing the credible fear review of those claims (which I described in an April 2017 report), most of those aliens are able to enter the United States, and a significant number are released for lack of detention space. This simply encourages more aliens to undertake the dangerous and degrading journey, aided by criminal alien smugglers and their cartel partners, to enter this country illegally.

Speaking of detention space, border security requires that U.S. Immigration and Customs Enforcement (ICE) have enough beds to house aliens who have been apprehended entering the United States illegally, or seeking admission without documents at the ports of entry. Once released, the likelihood that an alien will be removed drops exponentially, a fact that the Department of Justice's Office of the Inspector General identified more than 20 years ago.

It also requires shutting off the other magnet that encourages the legal entry into the United States, sanctuary city policies, as I explained in a November 2017 post. The knowledge that, say, California will hinder any efforts by ICE to apprehend an alien after he or she has entered illegally and made it to the Golden State simply encourages aliens to undertake the aforementioned journey.

All the walls in the world will not prevent illegal entry if these crucial fixes are not a part of any immigration deal over DACA, because DACA, as an amnesty, will simply encourage additional illegal entries.

The other effect of a DACA amnesty will be additional chain migration to the United States, as my colleague, Mark Krikorian has, again, explained. For that reason, any deal that would regularize the status of the 690,000 DACA beneficiaries must also address chain migration. Giving a green card to a DACA beneficiary today will lead a nephew entering the United States on an F43 visa, sponsored by that DACA beneficiary, and the not so distant future.

Galston's plan would also leave the Republicans in Congress negotiating against themselves. There is no groundswell at the present time to legalize the estimated 11 million illegal aliens in the United States today. If the president and congressional Republicans were to trade a DACA amnesty for nothing more than the promise of physical barriers along the Southwest border, they would then have to return to the table to obtain the necessary fixes to the "flawed system" that Galston describes. This would result in a "race to the bottom", as Democrats demanded status for more and more aliens illegally present in the United States, including some who likely have no intention of the present time of remaining here permanently.

As an immigration judge, the vast majority of the aliens who I saw in my court were single males who had come to the United States to work. Most were either saving money for themselves (often by living in overcrowded houses and apartments with other single males), or were sending money back to family members in their home countries. Following Galston's logic, in order to obtain what he admits are needed changes in our immigration enforcement system, the president and the Republicans in Congress would have to offer those individuals the ability to live here permanently. This is akin to offering a squatter you find hiding in your garage his own bedroom, dinner, and some clean pajamas.

Any amnesty for DACA recipients will require improvements in the current immigration laws to mitigate the negative consequences of that amnesty, as (for a third time) my colleague Mark Krikorian has explained. The president, and congressional Republicans, should not wait for a "Phase Two", which may never come, to obtain those improvements.

In the Immigration Reform and Control Act of 1986, Republicans were promised enforcement in exchange for amnesty, but the enforcement never panned out. Galston states that "[b]oth parties have a stake in reforms that would expand opportunities for new immigrants to ... acquire a basic knowledge of American history." It would also be helpful, before passing any new amnesty bill, if both parties had a basic knowledge of that American immigration history.