In the Senate yesterday, John McCain (R., Ariz.) and Chris Coons (D., Del.) introduced a bipartisan plan to extend the Deferred Action for Childhood Arrivals (DACA) program ahead of its upcoming March 5 expiration.
Their bill would grant permanent legal status to “Dreamers” (the recipients of the DACA program), but it fails to address any of Trump’s preferred immigration-policy changes, such as ending chain migration and the diversity visa lottery.
The president seemed to disapprove of this plan on Twitter Monday morning, though he didn’t refer to the bill by name:
Any deal on DACA that does not include STRONG border security and the desperately needed WALL is a total waste of time. March 5th is rapidly approaching and the Dems seem not to care about DACA. Make a deal!— Donald J. Trump (@realDonaldTrump) February 5, 2018
Last month, Trump shot down another bipartisan immigration plan proposed by Senators Dick Durbin (D., Ill.) and Lindsey Graham (R., S.C.). The plan, referred to by some as the “Gang of Six” amnesty proposal, is largely considered dead, given the president’s emphatic disagreement with its key components.
In the House, the bipartisan Problem Solvers Caucus has developed a compromise that they hope will iron out immigration disagreements, at least for the near future, and will be included in a long-term budget deal — a deal that must be reached by the end of this week if Congress is to avoid another government shutdown. The legislation, which has more than 50 co-sponsors split evenly between both parties, is a companion piece of legislation to the McCain-Coons bill.
The House bill offered by the Problem Solvers Caucus would provide a ten- to twelve-year pathway to citizenship for “Dreamers,” provided that these DACA recipients have a clean criminal record and have paid taxes. It would also appropriate $1.6 billion for parts of a border wall and fencing, $1.1 billion for additional security and technology, and funds for drug screening, border-access roads and personnel, and a border-security study.
The bill would prevent DACA recipients from sponsoring their parents for citizenship, but would it would provide those parents with work permits to remain in the U.S. for three years. It would terminate the diversity visa lottery in favor of a new merit-based visa for the same under-represented countries (such as Haiti) that now receive priority in the diversity lottery; the new merit system would have education, work, and language requirements. Half of the visas would initially be used to allow recipients of Temporary Protected Status to stay in the U.S.
The White House immigration plan, meanwhile, offers a path to citizenship for 1.8 million undocumented “Dreamers” in exchange for $25 billion to fund a border wall and other security measures. The proposal also requests an end to the diversity visa lottery and chain migration. Notably, the administration’s plan goes beyond protecting only the 700,000 recipients enrolled in DACA; it would also offer a citizenship path to those who meet the criteria for DACA but did not sign up, as well as others who would be eligible under expanded criteria for a set time period.
Though there has been a modicum of bipartisan agreement in both chambers of Congress, most lawmakers realize that it will be nearly impossible to find a resolution acceptable to enough members, let alone a compromise that President Trump would be willing to sign. As a result, some have floated the possibility of a temporary, one-year extension for DACA recipients in exchange for a small amount of funding for increased border security.
This last-minute standoff exists, of course, because of the way DACA came into existence in the first place: It was enacted unilaterally in 2013 by the Obama administration, usurping congressional authority, and in opposition to constitutional order. When President Trump reversed that executive action last year, he was widely characterized as being insensitive to the plight of minors who had been brought here illegally by their parents.
In fact, the Trump administration supports creating a path to citizenship for these and more minors. The president’s reversal of DACA had much more to do with restoring the constitutional order, requiring Congress to legislate on immigration policy rather than having the executive improperly mandate its preferred solution.
In reversing DACA, the president is requiring Congress to legislate on immigration policy — rather than having the executive improperly mandate its preferred solution.
The entire fiasco is an excellent practical illustration of why the Constitution prohibits the executive branch from instituting massive policy overhauls absent congressional approval. Given that the presidency shifts between parties so frequently, policies enacted the way DACA was become vulnerable to reversal by the incoming president and his administration, creating untenable situations such as the one we currently face.
Now Congress has to scramble to find a solution to prevent the termination of DACA — a decision that will affect at least 700,000 undocumented immigrants, who were promised a place in the U.S. by the government — simply because the Obama administration ignored the Constitution and launched its own policy in blatant defiance of the appropriate lawmaking process.
Regardless of which compromise Washington may eventually enact, this debacle should serve as a lesson in why the executive branch must leave lawmaking to Congress.
— Alexandra DeSanctis is a William F. Buckley Jr. Fellow in Political Journalism with the National Review Institute.