National Review, July 30, 2020
DACA is shaping up to be like the Spanish-American War tax or Jim Geraghty's USDA Agency of Invasive Species — an almost unkillable absurdity.
Since the first days of this administration, I've been trying to hold the president to his unequivocal promise to terminate the unlawful Deferred Action for Childhood Arrivals (DACA) program "on Day One." The White House was afraid to follow through, but eventually, on Day 228, DHS rescinded (with a wind-down period) the Obama-era memo that granted work permits to roughly three-quarters of a million illegal immigrants who came here before age 16.
What no one anticipated at the time were the lengths to which our lawless courts would go to keep DACA in place; my colleague Andrew Arthur includes a DACA timeline in a piece today. The Supreme Court ruled 5-4 last month (guess who was number five) that DACA — a program pulled out of thin air, with no basis in statute or regulation — could only be rescinded by jumping through the hoops of the Administrative Procedure Act (APA), which is supposed to be for promulgating and changing formal regulations, not ephemeral (not to mention illegal) policy directives.
This week, the administration finally responded to the absurd SCOTUS ruling with a plan for coming up with a rescission order that won't give John Roberts any pretext for continuing to delay the termination of the program. In the meantime, the new DHS directive allows DACA to continue, though with no new applications, with a renewable duration of only one year from the current two years, and ending the practice of granting "advance parole" to DACAs (which facilitates the conversion of DACA's amnesty-lite to the amnesty-premium of a green card). In addition, DHS has proposed charging a fee for DACA renewals; currently there is no fee for DACA itself, only for the work permit and fingerprinting. This would raise the total cost of renewing DACA from $495 to $765 (which is still only about half of what it actually costs to process the package of DACA applications, meaning the rest is poached from fees paid by legal immigrants).
Some immigration hawks were disappointed that DHS isn't just pulling the plug on DACA immediately. The Heritage Foundation, for instance, said that "conservatives are right to be disappointed that DACA continues to live on." But as the OG Squeaky Wheel for ending DACA, I actually think the administration is approaching this the only way it can. Since any new rescission order will receive a judicial colonoscopy, DHS needs to make sure to polish its every emanation and penumbra. None of that should be necessary for the simple rescission of a memo, but that's the hand that's been dealt.
Even if the new belt-and-suspenders rescission memo is issued before January 20, if Biden wins, his DHS secretary (Ilhan Omar may be looking for a job!) will simply rescind the rescission — and, needless to say, the #Resistance judiciary won't hold a Democratic administration to the same bogus APA standard as they have Trump.
Of course, Congress could rouse itself to do some legislating and give the DACAs green cards (something the president has supported, with conditions, for years), but I'm not holding my breath.