Commentary Magazine

DACA and the Conservative’s Dilemma

AP Photo/Pablo Martinez Monsivais

Contrary to the pronouncements of a few conspicuously visible activists, there is no conservative consensus on immigration. The liveliness of the debate over how to approach immigration even today is a testament to the diversity of conservative opinions on the matter. Those tensions will only be exacerbated by the president’s decision to punt the issue of DACA (Deferred Action for Childhood Arrivals) to Congress.

When it comes to immigration, though, conservatives do agree on a few things. Among them are that immigration levels should be dictated by the United States and not the multitudes who seek the benefits of living in America. Those immigrants should benefit society and show both the willingness and the competence required to assimilate. As a matter of civic integrity, the rule of law must be preserved.

The 800,000 progeny of illegal immigrants who took advantage of Barack Obama’s 2012 executive order are not a surplus population. A survey of these individuals commissioned by the liberal group Center for American Progress and conducted by the University of California, San Diego political science professor Tom K. Wong demonstrates this.

The poll of 3,063 DACA beneficiaries in 46 states found the average age of arrival into the U.S. was just six. A majority are between the ages of 22 and 28. Ninety-one percent are employed today. Eighty percent received a driver’s license. Ninety-eight percent describe themselves as bilingual. After receiving DACA status, 65 percent bought a car; 16 percent bought a house. Though their median hours worked per week remained static, their income doubled—purchasing power and the associated contribution to the tax base are tangible social benefits. Even allowing for the progressive nature of the group that sponsored this study and respondents prejudiced by social desirability bias, these staggering numbers cannot be dismissed.

And yet, these benefits come at a cost that should trouble any honest conservative. Is there a point at which the rewards of undermining the rule of law outweigh the risks associated with an increasingly slippery slope toward Banana Republicanism? Most conservatives would say no, and Obama’s executive actions on immigration tested the tensile strength of America’s commitment to jurisprudence.

Appealing to Constitutional penumbra and the scholarly legal doctrine of “We Can’t Wait,” Obama granted amnesty to as many illegal immigrants as he could in his second term. Though DACA survived scrutiny in the courts as an extension of the president’s power to exercise discretion in enforcing the law, his efforts to expand DACA out to their parents and to the young children of newer arrivals did not. Any legal reform that exempts the better part of 1 million individuals from the consequences of the law should originate with Congress. Trump’s 6-month window for congressional action is, therefore, not just defensible but laudable.  He is right to demand that Congress act on DACA.

What should disturb congressional conservatives most of all is the methods the government might use to enforce the law against those formerly immune to it. To be eligible for work and residential status, DACA recipients actually had to demonstrate that they were illegal residents. They provided the government with a substantial trove of information about themselves that now may, in theory, be used to round them up and remove them from the only country of which most of them have any memory. Even if conservatives believe DACA to be a misuse of presidential authority, the exercise of federal power in that manner would be a gross abuse of the public trust.

Principle is important, but it would be folly to ignore the politics of all this. Good policy is not always good politics, and the politics of DACA’s phase-out would be brutal. There are hundreds of thousands of sympathetic and politically mobilized young adults who will protest this decision. The cohort that opposes legal status for this class of immigrant, by contrast, is too small and disorganized to be visible. Public opinion polling has consistently shown the majority of Americans do not want to see legal status for immigrant offspring revoked. The majority of DACA recipients are young adults—the oldest among them is 36—and many are integrated, productive members of their communities. The economic and social trauma associated with their expulsion back into the shadows would be intolerable.

That’s why Trump’s punt may actually be an onside kick. What happens if Congress doesn’t act? It’s an eminently foreseeable prospect. Congress has been unable to act on its own legislative priorities. Would the legislature scuttle a packed calendar only to ratify into law an Obama-era executive order and likely without any reciprocal concessions on border security from congressional Democrats? Would congressional Republicans risk inviting a primary challenge from the populist right by taking that risky vote in a period packed with parlous votes? If the answers are no, would Donald Trump invite the politically toxic upheavals associated with DACA’s repeal? Perhaps not.

Though new applications for legal status are no longer being considered, current DACA recipients whose permits expire between today and March 5, 2018 have until October 5 to apply for a two-year renewal of their existing status. Theoretically, these extensions for existing DACA recipients can be offered in perpetuity. This is an option Donald Trump would almost certainly invoke if Congress declines to take ownership of this hot potato.

The current leadership in the U.S. Congress says they are determined to restore congressional authority and to end the institution’s serial deference to the executive branch. Trump is forcing Congress to put its money where its mouth is. If the demands of party politics and the legislative calendar compel Congress to pass the buck again, Trump will be handed a live grenade from which he’s already pulled the pin. For a Republican congressional leadership with little love for the president, that may be a more tempting option than standing on principle and absorbing blows meant for the White house.

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