Immigration Reform Brief

History of DACA (and conservative/constitutional critique).

Current U.S. law, written and passed by Congress and signed by the President, makes it unlawful for foreign nationals to enter or stay in the country without authorization. Despite this clear provision of law, an estimated 11.4 million people live in the United States without authorization.

In 2012, then-President Obama — under tremendous political pressure from his base — issued a memo through the Department of Homeland Security (DHS) titled “Deferred Action for Childhood Arrivals” (DACA). DACA sought to grant temporary legal status to individuals who were under 30 years old and brought to the U.S. as minors (frequently referred to as “Dreamers”). The roughly 1.7 million eligible recipients would be required to work or go to school, but could ultimately defer their deportation for two years. Recipients could renew their status.

Conservative legal groups challenged these actions in court as an unconstitutional overreach of executive power. Several states sued the federal government, and appeals courts ultimately ruled in favor of states to enjoin (or prohibit) an extension of DACA. Since the issuance of the DACA memo, and during debate over a larger amnesty, the number of people unlawfully crossing the U.S. border has increased significantly.

In 2013, debate began on a comprehensive immigration bill (the now infamous “Gang of Eight” proposal) that would have included amnesty for most of the unlawful immigrant population, including “Dreamers.” The Senate passed the Gang of Eight amnesty bill, which included a partial codification of the 2012 DACA memo (known as the “DREAM Act,” which the Senate failed to pass in 2010), but the proposal died in the House.

What the Trump administration did.

In response to another impending lawsuit against DACA, the Trump administration officially rescinded the unconstitutional Obama-era program on September 5th, with an effective enforcement date of March 5, 2018. Rescinding DACA fulfills a key campaign promise made by then-candidate Donald Trump to end the program and begin enforcing U.S. immigration laws. By including a six-month delay, the Trump administration is providing Congress with an opportunity to address the larger issue of illegal and legal immigration legislatively.

Effective immediately, the government will no longer accept new applicants for the DACA program — capping the program’s participation at roughly 690,000. However, pending applications and those wishing to renew their applications will continue to be processed until October 5.  

Possible congressional action.  

The day after his administration announced the end of DACA, President Trump told reporters that he’d “like to see something where we have good border security, and we have a great DACA transaction where everybody is happy and now they don’t have to worry about it anymore.”

In setting up a straight DACA codification for border security trade, the president risks repeating the mistakes of the Immigration Reform and Control Act of 1986. That law provided amnesty for 2.7 million illegal immigrants and the promise of future border security and internal enforcement. As President Reagan’s Attorney General Edwin Meese III wrote in 2013, the 1986 amnesty “encourage[d] millions more to risk entering the country illegally in the hope that one day they, too, might receive amnesty.”

Americans witnessed this dynamic in full force as the Obama administration’s unlawful DACA program came into effect and Congress debated a more sweeping amnesty in 2013. As The Heritage Foundation explained in 2014, DACA was “creating a powerful magnet for more illegal immigration, since children and their families have hope that they might receive some sort of amnesty, or at least not be deported, if they make it into the U.S.”   

A simple trade would also ignore another major flaw in our nation’s immigration system: family-based chain migration policies. As The Heritage Foundation previously wrote, DACA — or the DREAM Act, would allow illegal immigrants that gain legal status to “convert to non-conditional status immediately (and use his green card as a platform to bring in family members).”

Conservatives have long-opposed family-based chain migration policies, preferring instead to move to a skills or merit-based immigration system. Senator Tom Cotton — the Senate’s top immigration hawk — told the Washington Examiner’s Byron York that failure to fix America’s legal immigration systems means legalizing DACA recipients “creates a whole new class of people who will then be eligible for a green card and citizenship — namely, the extended family members of those who will receive legal status who can, through chain migration, get legal status themselves.”

Moving forward, it is imperative the executive and legislative branches learn from past mistakes, and work together to build a national consensus for an immigration policy that makes sense for all 320 million Americans, not only a sympathetic group put into an untenable situation because former President Obama illegally bypassed Congress.

Pathway to conservative immigration reform.

One of the most important lessons of the 1986 amnesty was that in order for immigration reform to be successful, it must be accomplished through a step-by-step process.

First, enforce U.S. immigration law: The Trump administration is already beginning to enforce current U.S. immigration laws and should continue to do so. Deporting illegal immigrants, denying amnesty and simply enforcing the law sends a strong signal to potential offenders not to enter or stay in the U.S. illegally.

Second, secure our borders: Congress should approve funding to build more secure fencing along the southern border and implement a comprehensive surveillance system to monitor the border that includes cameras, sensors and drones. Doing so will make it more difficult to enter the U.S. illegally.

Third, crack down on unauthorized labor: Improve internal enforcement through E-Verify, while prosecuting companies who hire illegal immigrants.   

Fourth, defund sanctuary cities: Municipalities who wish to disobey federal immigration laws should be denied federal security grants.

Fifth, reform the legal immigration system: Move away from the blanket chain-migration and replace it with a rational, skills based-migration system. There are lessons from the Canadian and Australian models that might best serve the United States’ immigration system.