In anticipation of the Supreme Court’s taking up the Deferred Action for Childhood Arrivals (DACA). From ABC News:
More than 700,000 young immigrants, who came of age in America but have lacked permanent legal status, look to the U.S. Supreme Court on Tuesday to uphold a program protecting them from deportation to countries they’ve never truly known.
The justices will hear oral arguments in a case challenging President Donald Trump’s controversial 2017 decision to end Deferred Action for Childhood Arrivals, or DACA, which grants qualified immigrants temporary residency and work privileges.
perhaps we should consider how we got into this mess. Here’s NBC’s recounting of the history:
Immigration reform couldn’t pass into law when Republicans controlled the White House and Congress (in 2005-2006). It couldn’t pass when a Republican was in the White House and Democrats controlled Congress (in 2007-2008). It couldn’t pass when Democrats controlled both the executive and legislative branches (in 2009-2010). And now we officially know this after yesterday: It isn’t going to pass with a Democrat in the White House, Democrats in charge of the Senate, and Republicans in charge of the House of Representatives (2011-2014). Back in 2008 or 2012, Republicans COULD argue that President Obama didn’t make immigration reform a priority, or that he took steps to stymie reform in when he was a senator. (And 2010, in particular, the one REAL moment of the Obama first term when immigration was possible, it was Senate Democratic leaders who weren’t ready to give up the politics of the issue. And the White House didn’t fight.) But now, no reasonable person can say that immigration’s death — in 2013 and 2014 — is anyone’s fault but House Republicans. Still, we also understand why they killed it: They saw no short-term benefit. Yes, the long-term politics (for 2016 and 2020) cry out for Republicans to remove immigration as an issue. But doing so would be so painful in the process (just see Eric Cantor’s primary defeat).
or, in other words, not only is this a bipartisan fiasco but both Presidents Obama and Trump are involved as well. The Supreme Court is being asked to decide if President Obama properly exercised executive discretion not on a case by case basis as the term is customarily applied but to an entire class and whether discretion exercised by President Obama may not be reversed by President Trump.
It should never have gotten this far and the Congress could still act. As I’ve said before I believe that some version of DACA should be enacted into law. My primary concerns are that
- Whatever criteria are decided on, they should be enforced rigorously and systematically.
- It should be enacted with bipartisan support.
- It should apply only to the young illegal immigrants for whom it was intended who have no mens rea not to their parents who do.
- It should not be a wedge towards an open border.
Sadly, that seems to be too much to ask of the Congress.
As I see it the Court could do a number of different things:
- It could allow President Trump’s cancellation of President Obama’s executive order to stand.
- It could declare in effect that President Obama had powers that President Trump lacks.
- It could kick the case back to the lower courts.
I think the first alternative is pretty obviously the correct interpretation of the law while the second would be truly remarkable and the third incredibly cowardly. This case should never have made it this far and the 9th Circuit should be chastised for it.
Powerline had a DACA commentary today, questioning why DAPA was so quickly overturned, while DACA has experienced so many judicial headwinds, now ending up in the Supreme Court to resolve.
Hopefully, some kind of legal consensus will rule the day, and the first option mentioned by Dave will be the outcome of this court case. However, if this does occur, I also hope Congress will forget it’s ego, and instead engage in significant and needed immigration reform, including a permanent place for the Dreamers in our country.
My guess – the court will punt.
They will vacate the 9th circuit decision on the basis it did not properly analyze the legality of DACA rule making by Obama. They order the 9th circuit to do a legal review with parameters that clearly point the Supreme Court would rule DACA exceeded executive authority if the 9th circuit fails to do so. Here is the punt; the court will let DACA continue until that review is finished.
Assuming the 9th circuit takes a year or so to do the subsequent review, DACA would be alive until after Nov 2020 but there would be an incentive to compromise in 2021 assuming no one wants the court to make a definite decision for 1 side or the other.
The Ninth Circuit should be divided up. So should the Sixth.
I kind of agree with CO here. The Supremes recognize that Trump cant sign any legislation that addresses DACA. He couldn’t even trade DACA for the wall, what seemed like his number one political goal, without Steven Miller, representing the base, overruling it. In 2021 you have a Democratic POTUS or Trump not facing re-election.
Steve