A Few Thoughts on “Dreamers”

“Dreamers” is shorthand for people who were brought to the United States when their parents came here illegally.  In 2012, Barack Obama issued an executive order¹ establishing the Deferred Action for Childhood Arrivals (“DACA”) program.  The program allowed people, who came to the U.S. before 2007 and before they turned 16 and who do not have a criminal record, to apply for two-year renewable permits to legally live and work here. 

President Obama initially called on Congress to pass a law to protect Dreamers (among other things), but when Congress failed to do so, he invoked his own special “Congress-won’t-do-what-I-want-so-I-can-do-it-anyway” principle of constitutional law² and issued an executive order establishing the DACA program.

An important side note is that the constitutional justification for the DACA program is arguably similar to the justification for the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) order that President Obama issued in November 2014.  That program offered legal protection to approximately four million people who were here illegally.  DAPA was justified on the theory that it was just a matter of establishing guidelines for the exercise of prosecutorial discretion.  The Fifth Circuit Court of Appeals disagreed and temporarily enjoined DAPA on the grounds it exceeded presidential authority.  The Supreme Court affirmed that decision. 

An underreported part of the Dreamer story is that several state Attorney’s General, including some who sued to stop DAPA, were threatening to amend the DAPA lawsuit, which continues on the question of a permanent injunction, to include DACA.  Also underreported was exactly what Donald Trump said he was going to do if Congress didn’t pass legislation with respect to Dreamers.  Here’s his tweet:

“Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can't, I will revisit this issue!”

If Congress doesn’t act, he “will revisit” the issue.  What does that mean?  It doesn’t sound like much of a threat to me, other than it is from Donald Trump.  But then Donald Trump is a threat to do most anything anytime, with or without six months’ notice, so I’m not sure how things have changed all that much.

Regardless, President Obama and others have gone ballistic with respect to the Trump administration announcement.  Of course, if protecting Dreamers was so important to President Obama back in 2012 (or any time thereafter), why did he leave the protection of them to a mere executive order, instead of getting a law passed to protect them.  Democrats would, I am sure, blame Republicans for not passing a law (though that doesn’t apply for the first two years of President Obama’s time in office).  They would claim it’s the Republicans’ fault because the GOP wouldn’t agree to comprehensive immigration reform.  Which is exactly the point.  If you couldn’t get a comprehensive bill passed, why not try for a law just covering Dreamers?  Lots of Republicans support protecting Dreamers.  It is entirely possible that a law limited to Dreamers could have passed.

At least part of the reason President Obama didn’t push for such a law is that at least some Democrats in Congress, and maybe the President himself, wouldn’t agree to pass immigration reform on a piecemeal basis.  For them, it was all or nothing.  A comprehensive law or no law.  In other words, instead of seriously trying for a law that would have locked in the protection of Dreamers, because it would mean accepting less than a comprehensive bill on immigration, President Obama left Dreamers vulnerable to his successor changing his executive order.³ 

The question now is whether enough Republicans and Democrats will vote to protect the Dreamers.  There seem to be lots of members of Congress who want to protect Dreamers.  But do they want other things more?  Is a comprehensive bill more important than protecting Dreamers?  Is funding for a border wall more important than protecting Dreamers?  Etc., etc.

If Congress doesn’t, or can’t, pass a bill protecting Dreamers, the fault will lie with whichever party, and whichever members of Congress, think that being able to tie something else to Dreamers is more important than Dreamers themselves.  Whose fault will it be if that happens?  In six months we’ll know.
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¹ I am not sure if the DACA program was established by an executive order or some other way.  As mentioned below, the DAPA program was supposedly just a matter of setting rules for the application of prosecutorial discretion.  Regardless of how DACA was established, it is pretty much the same legally, so I will just call it an executive order.  (It would be different if the Obama administration followed the Administrative Procedure Act and adopted formal regulations.  They didn’t.)
² See, for example, here, here, and here.
³ At this point, President Obama might claim that he couldn’t have gotten a Dreamers-only bill passed.  Of course, we will never know because he never seriously pushed for it.