The Center for Immigration Studies hosted a livestream to discuss today's ruling by the Supreme Court of the United States in Department of Homeland Security v. Regents of the University of California. The high court held that the Department of Homeland Security acted unlawfully in terminating the Deferred Action for Childhood Arrivals (DACA) program. The majority ruled there was no discriminatory intent on the part of the executive, but that the DHS memorandum that rescinded DACA "failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” So what should the executive branch and/or the legislative branch do next?
Center for Immigration Studies
Resident Fellow in Law and Policy
Center for Immigration Studies
Director of Policy Studies
Center for Immigration Studies
MARK KRIKORIAN: Hello. My name is Mark Krikorian. I am executive director of the Center for Immigration Studies. And we’re going to talk a little bit about today’s DACA ruling out of the Supreme Court. Let me start with a little bit of background on what DACA is and how things got to this point.
For those of you who don’t follow it, DACA, it means Deferred Action for Childhood Arrivals. It was a way of getting work permits to illegal immigrants who came to the United States before age 16. It was seen as a kind of administrative way of doing what the so-called DREAM Act in Congress would have done, even though Congress twice voted down – did not approve – the DREAM Act. The Obama administration, in the leadup to the 2012 election, was looking for something to motivate Hispanic turnout. They were worried – turns out, you know, unnecessarily – about the challenge from Republican Mitt Romney, and so in order to kind of goose turnout the administration instituted this program, DACA, that gives work permits and Social Security numbers to – it ended up to more than 700,000 illegal immigrants who came before age 16, mostly with their families but some of them came on their own. But the point is they came here before age 16. And there were certain requirements – they had to be here a certain amount of time, enroll in some kind of educational program. And so it was a(n) administrative version of the DREAM Act.
It was, from my perspective, unlawful from the beginning, but the Republicans in Congress and the House didn’t challenge it at all for an entire year. And what the upshot is, it went into effect. So three-quarters of a million, roughly – maybe more than that – people got work permits.
The Trump campaign, President Trump – or when candidate Trump ran, among other things say that he would repeal DACA on day one. And he didn’t do it; it took until day 200 or something. But in 2017, eventually the administration rescinded DACA. DACA was not passed as legislation, obviously. It wasn’t even an executive order. It was simply a memorandum from the – from the secretary of DHS to her subordinates, Secretary Napolitano to the people in DHS, claiming that it was merely an exercise in prosecutorial discretion; which is to say, it wasn’t an immigration program so much as just kind of, you know, to simplify it, just sort of look the other way.
The Trump administration eventually rescinded the program after Attorney General Sessions issued a memo formally determining that DACA is unlawful, it was illegal to begin with. And the Supreme Court decision is the result of the – of the litigation trying to prevent that rescission; in other words, to keep it in place. And so finally it’s gotten to the Supreme Court, and the Supreme Court – we’ll have more detail about what they said – but what the Supreme Court said is the way the Trump administration rescinded DACA was not valid, and so they would now have to jump through some other hoops in order to rescind DACA. It did not uphold the legality of DACA, and we’ll talk about that later. My sense is implicitly it acknowledged its illegality.
But to give some details about what the ruling said and maybe what some of the dissent said we’re going to go over now to Andrew Arthur, who is our legal eagle here at the Center for Immigration Studies, longtime Hill staffer, attorney in the INS, as well as an immigration judge. And so he’s well-qualified to tell us kind of briefly sort of the layman’s version of what this ruling actually found, and then after that we’ll talk some about what next, what are the implications, what should the administration do. So over to you, Art.
ANDREW R. ARTHUR: Thanks so much, Mark.
By way of background, very briefly, in 2015 the Court of Appeals for the Fifth Circuit had found – had affirmed a decision by a district court judge in Texas that a similar program, deferred action for parents of citizens and lawful permanent residents, known as DAPA, was illegal. On the basis of that decision, on September the 4th, 2017, then-Attorney General Jeff Sessions issued a letter to then-Acting DHS Secretary Elaine Duke advising her that she should rescind DACA because it was subject to litigation and it was not defensible in light of the decision in the Texas case, which was Texas versus United States, involving DAPA.
The next day, Elaine Duke issued a memorandum rescinding – actually, winding down DACA over a period of time. It allowed some of the people who had DACA but whose DACA was going to expire within the next six months to apply for extensions, and it allowed those individuals who had DACA that it was going to expire after that date to continue to have it, subject to eventual expiration of that status.
The memorandum from Elaine Duke was subject to litigation in a number of different courts. One of them was the D.C. District Court, and the D.C. District Court had issued an injunction of the recission of DACA but it had stayed that decision pending more explanation by the agency. That more explanation from the agency came from then-Acting DHS Secretary Kirstjen Nielsen. Nielsen fleshed out the reasons why DACA should be rescinded and determined that she would not overturn the decision of Duke rescinding DACA. Again, there was additional litigation that eventually made its way to the Supreme Court.
The question before the Supreme Court was whether the recession of DACA was reviewable at all and whether the recission of DACA by DHS itself was unlawful. The first question the Court answered in the affirmative. It wound that DACA was, in fact, reviewable. Having made that determination, it then held that Elaine Duke had acted in violation of the Administrative Procedure Act, the APA, in rescinding DACA. Specifically, it found that she had acted arbitrarily and capriciously.
The recission of DACA had, again, rested upon the letter from Attorney General Jeff Sessions, which rested upon that decision in Texas versus United States. The Supreme Court took great pains to parse Texas versus United States and held that that decision was premised based – was strictly premised upon eligibility for benefits as a result of DACA and not on forbearance or deferred action with respect to DACA itself.
DACA actually had two elements. One, it deferred the removal of the aliens who were eligible for and applied for that relief. And, two, it made those individuals eligible for a number of benefits, including work authorization, certain Social Security things, things like that. That was a big issue in Texas because the state of Texas alleged that it was going to incur tens of millions of dollars issuing driver’s licenses to the individuals who were going to be covered by – (inaudible, technical difficulties) – that Elaine Duke had acted arbitrarily and capriciously in rescinding DACA based upon Texas because she did not consider the forbearance issue, which the court in Texas, according to the Supreme Court, had not considered. So she needed to lay out her reasons for not forbearing, not continuing deferred action, even if she didn’t grant benefits to the aliens – work authorization, things like that to the aliens who were covered by DACA.
Second, the Supreme Court majority held that the – that Duke had acted arbitrarily and capriciously in failing to discuss the hardships that would accrue to the aliens who had DACA at the time that she rescinded that status. The Supreme Court made clear that she didn’t have to – or that DHS in the future didn’t have to not grant those individuals deferred action, that it didn’t have to, you know, grant some sort of specific status or have some sort of a timeframe by which those individuals’ status would expire, but rather that Duke had acted arbitrarily and capriciously in not discussing the issue of forbearance, as it called it, at all. On that basis, the Supreme Court held that Duke’s September 5th, 2017 memorandum rescinding DACA was unlawful.
Significantly, the Supreme Court did not consider Nielsen’s June 2018 memorandum in which she laid out more reasons for the recission of DACA, some of which went directly to the points that were made by the Court. It held that the original action was that of Duke, and that that was the one that it should focus on.
Finally, the majority – and this part gets a little bit confusing – dismissed the equal protection claims that had been brought by the petitioners against DACA. Specifically, they had alleged that DACA recession disproportionately affected Latinos, and in particular Mexican nationals, and that the process for rescinding it, that was irregular. And it referenced statements that President Trump had made about Latinos, and in particular Mexican nationals, both before and after the election. The Supreme Court held that it wasn’t surprising that recission would adversely affect Latinos because they make up the majority of aliens who are unlawfully present in the United States. It found that there was nothing really that irregular about the recession process itself because, of course, Duke had rescinded it based upon a legal opinion from Sessions. And it found that the decision to rescind DACA was, one, a legal opinion issued by Sessions; and, two, a policy decision issued by Duke; and therefore, Trump had nothing at all to do with it, and Trump statements were of no moment.
Sotomayor, concurring in the first part of the decision, dissented from that last part having to do with equal protection. She asserted that they – that the parties had shown plenty of reasons to go forward on equal-protection grounds and that the Court should not have stopped those claims in the future.
Justice Thomas, in dissent, writing on behalf of himself and Justices Gorsuch and Alito, stated that DACA was illegal to begin with and that it simply should have been dismissed on that basis – that, you know, the recession was perfectly lawful because the law itself to begin with was unlawful, for two reasons. One, there was no basis in the INA for Janet Napolitano and DHS back in 2012 to enact DACA to begin with. Two – and this is really interesting – even if Napolitano did have that authority, she herself failed to go through notice-and-comment rulemaking required under the APA for the action. So it pointed out the discrepancy that Mark alluded to earlier, that there is a policy of DHS that is ruled – that is rescinded, and then the recession is deemed to be violative of the Administrative Procedures Act, when – Administrative Procedure Act – when, in fact, the actual implementation of the program itself had never gone through the APA.
Justice Alito, writing in dissent, stated that this was a prime example of everything that was wrong with the Court; that, you know, in essence parties had been able to suspend a perfectly legitimate recission of an unlawful rule by, you know, going through the courts, and the Supreme Court’s decision was just one more abuse of our federal system and, you know, the three branches of government and the separation of powers in doing that.
Justice Kavanaugh, also writing in dissent, stated that the Court should have considered Nielsen’s decision. In essence, his argument was Napolitano had issued a – the DACA program by memorandum, that Duke had rescinded that program by memorandum, and that the statement by Nielsen was, in fact, just another recission, and that it should have been that recission that the Court had focused on.
So that’s the decision in a nutshell.
MR. KRIKORIAN: Thank you, Art.
Before we go to Jessica Vaughan, if she’s going to be able to join us, one thing I wanted to draw attention to is that the majority – as you said, the first question was, was this something the courts could even review at all? And the Supreme Court, the majority ruling, said that they could review it because the DACA program was not just a nonenforcement policy; it was, as it said, quote, “a program for conferring affirmative immigration relief.” Unquote. And yet, the Obama administration from the beginning said that DACA was just a passive nonenforcement policy rather than immigration relief. So in a sense, the majority, even, has implicitly at least acknowledged that – even though they didn’t say this explicitly – implicitly acknowledged the program was unlawful to begin with. So it seems to me the administration’s on strong ground.
And this is what I wanted to ask you, is, based on this decision, the administration is not in any way precluded from rescinding DACA; they just have to jump through a few extra hoops in doing it. Would that be a fair way to describe it?
MR. ARTHUR: Absolutely. And the administration – basically, the Supreme Court’s decision has laid out a roadmap by which the administration can, in fact, rescind DACA. Now, the problem is that if it does that it’s going to go to the district courts. They’re going to find a pliable district court judge who’s going to enjoin that. It’ll then go up to the circuit courts and it’ll wend its way to the Supreme Court. Keep in mind that here we are on June the 18th, 2020, considering a Supreme Court decision issued today that had to do with a memorandum that was issued on September the 5th, 2017. So 33 months ago this decision was issued – I’m sorry, 21 months ago this decision was issued, and we’ve got an opinion from the Supreme Court overruling it today. Which goes directly to the point that Alito made, was courts shouldn’t be involved in this stuff at all. This is for the political branches, not for the courts.
MR. KRIKORIAN: Right. So if – we may or may not get Jessica back on the line, but the next thing – the next question, of course, is: Now what? What is the administration likely to do? They have – we talked about this. You said there were several potential responses or options the administration has. What is the next step now for the White House and for DHS?
JESSICA M. VAUGHN: Hi, Mark.
MR. KRIKORIAN: Oh, hey.
MS. VAUGHAN: Oh. Go ahead, Art.
MR. KRIKORIAN: Yes, I can hear you. Go ahead, Jessica.
MS. VAUGHAN: OK. (Laughs.)
Yeah, that’s really the important thing. And I think – you know, I’ve been hearing a lot of reactions from both DACA recipients and other folks on this decision, and I think it’s important that – you know, there’s been a lot of emotion and panic and celebration all at once about it, but basically the effect is that it simply sends the administration back to the drawing board if it wants to try to wind down this program again. And here we are in an election year, so it’ll be interesting to see whether they decide that they are better off just letting it continue or if they should try to push Congress to do what has always been its job, if it wants to, which would be to resolve the situation of the DREAMers.
And you know, I feel like the DACA recipients are very happy. They feel that the Supreme Court has saved them and, you know, given them hope, and taken away the fear that they’ve had under the Trump administration, which seems to really miss the point. Which is, first of all, Trump has not indicated that he is interested in, you know – or that he’s been waiting for the chance to, you know, give ICE a list of everyone with DACA and start removing them one by one. That’s never been the goal of the Trump administration. In fact, in 2017 they put forward an immigration proposal that offered amnesty to not only the people with DACA, but double that number of people who might potentially be eligible for DACA, along with border wall funding and reforms to the legal immigration system, which Congress, you know, did not take that chance to get a resolution for the DREAMers – the so-called DREAMers. I don’t think they’re in much better position today to actually be able to resolve it.
But that I think is what Trump should do, is say, look, this program is still as illegal as it was on the day it was issued in 2012, so I’m going to try to wind it down again. We’re going to go through the process that the Court has laid out for us. But actually, the Supreme Court has potentially prolonged the period of time in which people with DACA are, you know, going to be without resolution. And I heard from a contact within the White House who said, yeah, well, you know, this decision was annoying, but it really isn’t that big a deal because it says that we have the authority to rescind DACA.
So that becomes the question going forward, how does this – how does this get handled? Will Congress be able to show enough discipline and sense to put together legislation that deals with this? Or, you know, do the Democrats essentially want to use people with DACA as a campaign prop, thinking that they’d rather do this – you know, that they’re going to have the next – they’re going to have the White House and enough people in the – on the legislative side to get something done? That’s a pretty risky bet, I think.
My greatest concern is that this will end up in a lame-duck Congress, which is – I think never has a reputation for doing sensible legislation – (laughs) – after an election but before another presidential term. So that’s what we need to watch out for. But, yeah, I mean, there – it doesn’t change much at all for the moment.
One thing that I also think should be considered is that USCIS – the agency that administers the DACA benefits – needs to – is about to go bankrupt. And one of the many reasons for that precarious financial situation is because all of the people who have been receiving DACA benefits all this time were essentially getting them for half-price. And so other legal immigrants were subsidizing their benefits and, you know, the agency was slowly going broke all this time because all they had to pay for was a work permit. They didn’t have to pay for their deferred action to be adjudicated, meaning that they weren’t paying for the full cost of the adjudication of their benefits. So, you know, maybe this could potentially be a way to bring some revenue back into USCIS, is that if they’re going to have to keep cranking out DACA renewals, then they ought to charge the fair price for those so that other legal immigrants don’t have to subsidize this.
MR. KRIKORIAN: Thank you, Jessica, although of course, you know, then there will be a lawsuit about the – you know, the full fees. But put that to the side –
MS. VAUGHAN: There’s a lawsuit about – every time they, you know, say the word “immigration,” I think, there’s a lawsuit nowadays. (Laughs.)
MR. KRIKORIAN: I actually had a question for Art that relates to this issue of lawsuit. A listener sent in – reminded me of the lawsuit in the Fifth Circuit against DACA on its merits. In other words, this was – remember, there was a lawsuit against DAPA, with a P, which is the thing that never went into effect. In the Fifth Circuit, they determined that was unlawful. The lawsuit on the substance of DACA, whether it’s lawful or not, it seems to me is likely to start up again. Or do you know what the status of that is? Because it seems to me that could be – if that gets to the Supreme Court then it moots all of this, because if the Supreme Court formally decides DACA was unlawful, then does that kind of wipe away the decision from today? Any thoughts, Art?
MR. ARTHUR: Yeah, it was the threat of litigation by various states and not the litigation itself that prompted Attorney General Sessions to issue his letter to Elaine Duke. One thing, speaking systematically, if the decision is made to rescind DACA, I have a feeling that Bill Barr is going to not do a one-pager the way that Jeff Sessions did, but rather is going to issue a rather in-depth, comprehensive assessment of DACA that will then be sent over to Chad Wolf, if Chad Wolf wants to – and directing Chad Wolf to rescind it because it’s illegal and there would be that litigation risk. Again, litigation risk was one of those things that was raised by Nielsen – addressed lightly by Duke, but raised primarily by Nielsen and by the attorneys who were arguing these cases for the Department of Justice.
So you’re going to see a lot more beefed-up opinion from Bill Barr that will then go to Chad Wolf. Chad Wolf would then consider all the factors that the Supreme Court says that it should. Quite frankly, Barr’s opinion may be based on the dissent by Thomas because Thomas does an excellent job and excoriates the majority, including Chief Justice Roberts, for, you know, basically playing around the political issue. And this isn’t the first time that Thomas has done this, and you alluded to the fact that it’s an illegal policy but it can’t be undone because it’s a policy. If you remember back in Obamacare, Roberts found that Obamacare was legal because it was a tax, which the Obama administration again specifically stated it wasn’t, the mandate that individuals get benefits –
MR. KRIKORIAN: Health insurance.
MR. ARTHUR: – or requiring them to get benefits. So, yeah, this is a Roberts special. And again, he wants to keep the courts out of political issues, but, respectfully, he’s just drawn them further into political issues.
MS. VAUGHAN: Respectfully, Art, didn’t the ruling specifically say that the DHS chief would almost have to follow the legal recommendation of the attorney general?
MR. ARTHUR: Yeah, and that – right. And it’s actually very interesting, and this is a point that comes up a lot in our certification discussions because, again, the attorney general under the INA is the person who makes all determinations with respect to law, with respect to the implementation of the INA. So Sessions made the legal determination which he’s required to by law, which he has sole jurisdiction to do, and then handed that over to Duke, who has to make the policy call. So it was the policy call by Duke that was at issue.
So that’s why Barr will have to issue a brand-new decision assessing the legality – or logically would - assessing the legality of DACA, you know, potentially facing down a lawsuit which you had alluded to earlier by the states that had threatened it to begin with. And that would be the basis for Chad Wolf or DHS’s ultimate determination.
MR. KRIKORIAN: And this is kind of for everybody, but what are the – what are the political calculations, do you think? In other words, what are the either pluses or minuses for the administration in pushing forward with a recession – in other words, having Bill Barr maybe have a more expansive analysis of the illegality of it and then pressuring DHS secretary – Acting Secretary Chad Wolf, who frankly may be reluctant to do that given his past affiliations and views, but pressuring him to actually rescind it? In other words, what are the pluses and minuses of actually re-rescinding DACA or, on the other hand, not rescinding it and just letting it go? Excuse me. Jessica?
MS. VAUGHAN: Well, it seems to me, you know, in light of this decision, which says that he clearly has the authority to do it, and based on his campaign promises and statements while president, that he pretty much – it would be extremely awkward for him to flip-flop on this and not move forward to wind this down. I mean, he has an illegal or at best improper program on his hands that is inspiring more illegal immigration, is very costly to taxpayers. Granted, it is a political hot potato. But he should, to be consistent, move forward with winding the program down but at the same time taking the lead to work with Congress to arrive at a resolution of this that is responsible and takes into consideration the implications for the rest of the country, you know, not by just rubberstamping the bill that the House passed not too long ago, which gave an amnesty not only for DACA but most other people in the country illegally and future illegal aliens as well. I mean, you know, he needs to take the lead.
Reportedly there are already some Republicans in the Senate that are going to pressure the president to try to get something done quickly before the election so that this election goes away. But sometimes I get the feeling that the Democrats would rather use this as a campaign issue than solve it and allow Trump to have a win on it.
But, you know, we have to be very careful to make sure that Congress doesn’t go too far. I mean, you know, we’ve outlined time and again what we think an appropriate bill would be to resolve DACA, which would be basically a legalization along with improvements to interior enforcement, like E-Verify and also reductions in chain migration in order to offset the future effects of this amnesty, because we know that a legalization of people with DACA is going to actually result in green cards for more than double that number. So that has to be mitigated.
There’s a deal out there. The president should lead and try to get to that deal.
MR. KRIKORIAN: And, you know, the important point – and this is the point we’ve made over and over again – any deal like this is not a matter of horse trading. In other words, it’s not, OK, well, we’ll give you guys DACA green cards if you give us something we want. The point is it’s an organic whole, because legalizing the DACAs – actually, they’re already legalized – but upgrading them to, you know, green-card premium from green-card lite, which is what they have now, will have consequences, like you suggested. And so those consequences have to be mitigated or limited as part of the legalization. In other words, this isn’t pick one from column A, one from column B, kind of thing.
But, you know, that said – and Art, I’d like your thoughts on this, having worked on Capitol Hill for many years – doesn’t really – unless the president goes through with re-rescinding this program, doesn’t it just take the – let everybody off the hook because there really isn’t the kind of urgency to do anything about it because everybody’s got their work permits and, you know, they may complain and protest, but nothing actually is going to change? And so until there’s a real threat of something changing, it seems unlikely to me either party or anybody is going to do anything to, you know, end this limbo status. Any thoughts on that, Art?
MR. ARTHUR: Yeah. No, and, you know, Justice Alito did not allude to this in his dissent, but the courts really did the DACA recipients no favor in this. There would have been tremendous political pressure on the White House and on Congress, the Republicans in Congress, to actually do something for this class of individuals if the courts had not acted. But the courts interposed themselves, in my mind improperly, in this system. And, you know, for that reason the Trump administration can fall back and just say, look, they got status. They’re fine. Nobody cares. You know, if the Democrats in the House want to send me a bill on this, go ahead and send it, but right now everything’s fine.
Here’s the one thing that I think is probably going to stop that from happening that is actually going to push additional rescission forward. Bill Barr is probably the least political attorney general that I can remember, certainly since Michael Mukasey, and, you know, probably since Jeff Sessions. But, I mean, he is, you know, just absolutely apolitical. He doesn’t need to be the attorney general. He can go to a $5 million-a-year law practice if he wants and would probably be a lot happier. He does it because he’s a dedicated public servant and he’s dedicated to the Constitution.
I don’t think that Bill Barr is going to, you know, in that role – and remember, he’s the attorney general of the United States, not the attorney general of the Trump Administration – have to issue a decision that finds that DACA was unlawful to begin with and lay out a lot more fulsome analysis, again, than AG Sessions did in his one-page September 2017 document.
And the reason for that is that he needs to protect the prerogatives of the executive, no matter who the executive is, and protect the prerogatives of Congress as it relates to determining who is allowed to enter the United States and who has to be removed.
So I think that Sessions is going to – or that Barr is going to feel great legal pressure to act. And I think that once he does that, Wolf is going to have no choice but to act. The question is going to be what that looks like. And again, you know, that’s one of those things that’ll probably be decided, you know, somewhere over at St. Elizabeth’s Hospital, where DHS currently resides.
But, you know, it’s important to note this isn’t the Trump decision. And, you know, that was key to the Supreme Court’s analysis. The INA gives the authority to rescind DACA squarely to the secretary of homeland security. Plainly he does that in conjunction with the president. But it’s ultimately going to be his decision.
So I think he’s going to be forced to act. I think that the Trump administration would be in a perfectly fine political posture doing nothing. I think Barr is going to have to act, which is going to force Wolf to act. Now, Wolf can write something that is expansive enough that it’s not really going to adversely affect anyone. But as Jessica alluded to earlier, this decision doesn’t – (inaudible, technical difficulties) – favors, because they don’t have any status.
You can say that it’s green-card lite, but in reality this status could be taken away tomorrow and they could start deporting people, you know, on Monday. So, you know, it’s a very tenuous situation that all of these – (inaudible, technical difficulties) – individuals in, because it’s absolved Congress of having to make the tough decisions on how it’s going to, you know, protect any or all or even more. I think President Trump alluded to 1.8 million people. Right now there are 649,070 as of December 31, individuals who have DACA status.
So again, the Trump administration could do nothing. I don’t think Bill Barr’s going to be able to do that. Wolf could do something that would really kick the ball back into Congress’s court, and then Congress is going to have to make the tough call.
Remember, the only reason that we have DACA is because the DREAM Act failed in 2010. The Obama administration held all the cards. They had a supermajority in the Senate, which meant that they could do whatever they wanted. There would be no filibuster. They had a majority in the House of Representatives at that time and they had the White House. And yet they didn’t do an amnesty. That’s because amnesty really isn’t popular, no matter what the Chamber of Commerce or, you know, CNN polling or anybody else says. This is a very tough decision to make, and any amnesty is going to subject, you know, any politician that touches it to the pillory. So, you know, this probably is a worse decision for Congress than it is for anybody else.
MR. KRIKORIAN: Yeah. I mean, my sense, to sort of go back to this idea of – and Jessica, you referred to this too – of the DACAs or even the DREAMers sort of more broadly as kind of a political problem, my sense has always been – and they’ve been – the other side has been kind of explicit about this, that the points to the DREAM Act, which then, you know, morphed into DACA unlawfully, was to hold up the most sympathetic group of illegal immigrants, people who came here at a young age. DACA, of course, applies to people who came before age 16 – or, you know, before age 16.
So they usually put up people who came here at eight months or something and have spent their whole lives here. And, you know, there, you know, is sort of the prototypical DREAMer, as they – in the – sort of for PR purposes; somebody who came here at eight months old, has never been back to Mexico; you know, doesn’t know any more Spanish than you see on a TV commercial, is a valedictorian in his high school and has his heart set on joining the Marine Corps and hunting down and killing America’s enemies. Therefore, all 12 million illegal aliens need to get amnesty. They were poster children for a broader amnesty. And in a sense, that’s still the way they’re being used.
MS. VAUGHAN: Like health-care workers fighting COVID-19.
MR. KRIKORIAN: Right. Exactly. Now, even a subset of the DACAs are being used as poster children for the broader DACA, which is kind of a poster children for a broader amnesty. So, I mean, we’re – as a think tank, we don’t do electoral politics. But, you know, we can bloviate on it.
What do you think the political consequences would be for the administration not to do anything at all, to just sort of let this go, as opposed to following through, Art, as you suggested, with Barr first giving the legal analysis that DACA is unlawful, a more expansive one, and kind of forcing acting Secretary Wolf, maybe even against his own inclinations, to act to withdraw it? What are the down sides of not doing anything at all and just sort of letting it ride? I mean, I have my own thoughts on that. Jessica, do you have any thoughts?
MS. VAUGHAN: Well, I mean, look at the frustration among some of the president’s supporters about the lack of movement on some other key campaign issues that they thought would be resolved, like reforming our guest-worker programs and, you know –
MR. KRIKORIAN: Even the wall.
MS. VAUGHAN: Yes, and the wall itself, and increasing enforcement. That hasn’t happened either. Enforcement has pretty much plateaued at the levels it was at the end of the Obama administration. So there’s a lot of frustration among people who voted for the president because they thought, among other big things, that he was going to go back to an immigration system that served our national interest and give them relief from this – you know, and get control of immigration.
If he doesn’t move forward with a DACA rescission, there will be even more of a feeling of betrayal among those supporters. And that’s very, very risky if he wants to have a second term.
MR. KRIKORIAN: Any thoughts, Art?
MR. ARTHUR: Yeah. You know, it is interesting, because if I were Donald Trump, what I would do is I would just blame the Supreme Court. I would assert, you know, look, you’ve got four justices on the liberal wing of the Supreme Court who vote in lockstep. You’ve got an attorney – or you’ve got a chief justice who was appointed by George Bush that, you know, seems to issue some interesting decisions, and say this is the reason why I need to have, you know, more senators, so that I can get better justices on the Supreme Court when and if a vacancy occurs. And we do have some rather elderly individuals on the Supreme Court.
So, you know, fobbing this off as, you know, overreach by the Supreme Court is smart strategy by the president. With respect to actually taking action, you know, again, he can punt it over to the House of Representatives and say, you know, tell Nancy Pelosi, look, you’ve got your decision. This was obviously something that you wanted. Now send me a bill –
MS. VAUGHAN: Right.
MR. ARTHUR: – that I can sign that’s going to actually address these things. And it’s in the course of that – and again, Congress only acts when it has to. And somebody told me my first day in Congress, Congress doesn’t exist to make laws. It exists to keep bad laws from being made.
So, you know, this is going to, you know, really be where the rubber meets the road. This will be where the whole thing gets interesting. And, you know, inaction – assuming that Bill Barr could, you know, not act – and again, I think his hand is going to be forced in order to protect the Constitution’s separation of powers – but inaction in this particular instance is probably as good a strategy for the president.
Now, yeah, you know, there will be people in his base who say, you know, you promised that you’d do something about this and you did. And he can say, you know, I want you to go to John Roberts. You’re not – your beef isn’t with me. We tried to do everything we could. But as long as we have these obstructionist judges – I mean, this just sort of underscores all of the bad decisions that courts have issued with respect to Trump administration initiatives.
MR. KRIKORIAN: Yeah. I mean – yeah, I agree. I mean, but, I mean – and I’m going to wrap it up with this – but my sense is there’s a risk to doing that without also pushing forward with a rescission, and that is that the president – and this is – Jessica alluded to this in the immigration sense; in other words, there’s several things he hasn’t gotten done. This is going to add to the sense of impotence on the part of the White House.
But I would actually go beyond that. The president, you know, is, in fact, I think, being justifiably, by many of his supporters, seen as weak. His response to the riots was, frankly, weak. His response to the transgender decision, which isn’t our area here, whatever you think about it, but his response was kind of supine. I mean, I’m not sure how else to describe it.
And so my point is, not pushing forward with a re-rescission, even if he also makes the argument you were suggesting about the courts being the problem, which they are, would, it seems to me, cement the perception of the White House as weak and impotent, of the president basically just tweeting in the basement and not actually getting anything done.
And so I think – I mean, I think the greater danger is not actually going forward. But we’ll see. One way or the other, we’ve –
MR. ARTHUR: Well, if I – if I could make one point with respect to that, Mark, one thing that Chad Wolf could do – and you know, both you and Jessica have alluded to, you know, particularly, you know, meritorious cases or sympathetic people. I think I testified against a fellow whose parents brought him here on a B-2 from South Korea intending to live her permanently, and you know, he’s a Rhodes scholar or is getting a Rhodes scholarship. But Chad Wolf could actually craft a recission of this that is narrowly tailored to address those issues. He could say if you’re a health worker, as long as there’s the COVID-19 crisis, you get to keep your status. If you’re in the military, as long as you’re in the military, you get to keep your status and you can naturalize through that, citizen. If you’re an essential worker, you know, in this COVID time that we still are, you know, you can continue that, again, through the COVID crisis.
If DHS were shrewd, it would craft – and the Court actually says it can do exactly this. It could craft the wind-down in such a way that it would address those sympathetic cases, while at the same time, you know, addressing the vast majority of individuals who are criminals. Anybody who has a crime, Chad Wolf could say, who is illegally present in the United States is not eligible for DACA. People make a mistake that this doesn’t apply to criminals. There are a lot of criminals who, you know, have DACA, including criminals who are removable from the United States – notwithstanding the fact they’re here illegally, but also because they have crimes – who are protected by this. So the administration could act shrewdly, address those issues, and still do exactly what you allude to, Mark.
MR. KRIKORIAN: Well –
MS. VAUGHAN: Right. Take the lead, control the narrative, and move it forward. Exactly.
MR. ARTHUR: Absolutely.
MR. KRIKORIAN: We’ll see. We’ll see. I mean, that may – I don’t have high hopes that – shrewdness and strategic vision are something this administration hasn’t necessarily shown a lot of in the past, but let’s – with high hopes for the future we’ll – let’s wrap this up. Thank you, Jessica Vaughan, who’s director of policy studies here at the Center for Immigration Studies; and Art Arthur, Andrew Arthur if you see it in writing – only his mother calls him Andrew, though, apparently – who is our fellow – senior fellow on – what is it called, again? What’s your title, Art?
MR. ARTHUR: I’m the resident fellow in law and policy.
MR. KRIKORIAN: Thank you. Thank you.
MR. ARTHUR: Mark let me make that.
MR. KRIKORIAN: And will – and this whole discussion will be on our website at CIS.org. All three of us are on Twitter. If you like snark and sarcasm, you can follow me. Actually, I don’t know if Art’s on Twitter, but Jessica is much less snarky and sarcastic than I am. So it depends on what your taste is.
MS. VAUGHAN: (Laughs.)
MR. KRIKORIAN: Thanks for joining us. And we’ll maybe do another one of these when the Supreme Court decides the next DACA case after it’s rescinded and then challenged and then sent back up to the Supreme Court. Thanks a lot, folks. And for those of you listening, hope you join us for the next event like this. Bye.