Deferring action puts immigration into the proper legislative hands
The Torah states 36 times that we are obligated as a nation to welcome the stranger. Immigrant groups like the Hebrew Immigrant Aid Society (HIAS) have taken the scripture as a clarion call of Jewish principle to fight for unfettered immigration rights in the United States. But maybe context needs to be added to the scripture.
The proverbial stranger in the Torah is someone who was born a non-Jew but opted to join the Jewish people. That person does not remain a stranger, but becomes someone like Ruth or Yitro, who cast their lot with the Jewish people. There are clear moral obligations with respect to “strangers” who have lived among us for a generation, if not longer.
Which brings us to DACA. The program has become better known by its acronym than by the policy it stands for: Deferred Action for Childhood Arrivals. The key terms being “deferred action.” DACA, by definition, was never meant to be a permanent policy. It was instituted by President Barack Obama after he was, in his words, “forced to act because Congress refused to act.” A curious construction for someone who taught constitutional law. To use an apt phrase in a different context, the famed rock band Rush exclaimed, “If you choose not to decide, you still have made a choice.”
More to the point, anyone who has any understanding of the concept of separation of powers, even if it is as limited as viewing episodes of “Schoolhouse Rock,” knows that the U.S. Constitution puts law-making power exclusively under the control of the legislative branch, namely Congress. Congress not only has the power to make laws, but the corresponding power to refuse to make law.
Presidential power — as defined by the executive branch — gives the president the obligation to enforce the law, not make new laws, even if Congress fails to act. Additionally, it explains why the executive order was specifically designated as “deferred” action as opposed to action.
The reality is that the principles of DACA should apply. Obama was correct on the merits and Trump’s stated position on demolishing the principle is wrong. That being said, Obama was wrong to present DACA as an executive order and Trump is correct in creating a six-month window to pressure Congress to do the right thing.
Since the announcement declaring the end of DACA, Trump has watered down his initial position. First he said he would “consider” extending DACA if Congress does not finalize a law within six months. He also recently met with Democratic leaders Sen. Charles Schumer and Rep. Nancy Pelosi, who said they had been assured that no one under DACA would be deported after the six-month window. The White House confirmed it’s interested in formulating a bipartisan solution.
DACA applies to a specific population, namely people who came to the United States in violation of immigration law but through no fault of their own. It designated a population of people who arrived as non-citizens prior to their 16th birthday with their parents, who crossed the border illegally. These children had no say in where they were going. In many cases, they were quite young when they arrived, are fluent in English (sometimes exclusively so), and are not familiar with other cultures, including that of their birth country. Yet under current immigration law, they have no legal path to citizenship. In short, the entire design of the executive order was to kick the can down the road until Congress is forced to act.
Perhaps Trump deserves some credit from HIAS and immigration advocates. He did not cancel DACA outright, although he could have; rather, he used a subtle approach, taking Obama’s executive action at face value. He said that the policy must end, which it likely would anyway after Supreme Court review in the coming term, but he is putting Congress’ feet to the fire by imposing six months to come up with a plan.
The truth is that Trump is looking for a solution similar to that of Obama, but he is approaching it from a different angle. Obama said Congress held him hostage. Now Trump is using the program, which let Congress off the hook, to hold the legislative body hostage. That may be the silver lining behind Obama’s questionable executive order. Despite Trump’s blustering rhetoric, Congress is going to have to deal with reality. Hopefully, they will do the right thing.