In a deeply illogical ruling, Judge John Bates has blocked the Trump administration from ending Obama’s DACA amnesty for illegal immigrants. He did so even though his arguments would logically have led to declaring DACA illegal, instead. He ruled that DACA cannot be rescinded without giving weight to DACA recipients’ “reliance interests” — even though DACA itself made clear to recipients that they could not rely upon it, as it creates no right to remain in the U.S., and could not be relied upon to create any right or benefit. He also ruled that the Department of Homeland Security did not adequately justify its ending of DACA — even though DHS provided several reasons for ending DACA — including the fact that DACA shares important features with a broader amnesty that was invalidated by the Supreme Court, and the fact that amnesties like DACA incentivize future waves of illegal immigration — and even though everyone admits that Obama had no obligation to issue the DACA amnesty to begin with.
Presidents don’t have a general power to suspend the law. That would be a violation of their constitutional duty to “take care” that the law be enforced, and Article I of the Constitution, which vests legislative power exclusively in Congress, not the President.
So when President Obama issued a temporary amnesty for certain young illegal immigrants, that amnesty — known as DACA — was couched as being an exercise of enforcement discretion, not a suspension of laws against illegal immigration. To avoid being invalidated on the obvious ground that it was an unconstitutional suspension of the law — which the Constitution forbids — DACA included language explicitly stating that it didn’t create any vested right to remain in the country on the part of its beneficiaries. It purported to leave discretion in the hands of immigration officials in whether to approve individual applications for amnesty on a case-by-case basis. It also purported to exclude illegal immigrants with a serious criminal record.
These claims about case-by-case review and the need for a clean record were false. Essentially all illegal aliens who applied were approved, if they submitted a modest fee, and filled out and attached the right forms — even if they did not meet DACA’s purported requirements.
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As the Daily Signal notes:
For those who think that, during the Obama administration, the U.S. Citizenship and Immigration Services was actually checking the backgrounds of all DACA applicants, nothing could be further from the truth. It implemented a “lean and light” system in which only a few randomly selected DACA applications were ever actually investigated, and only rarely was any of the information on the applications themselves even verified.
This new data from the U.S. Citizenship and Immigration Services contradict claims that DACA has not been a shield for criminal aliens. Director L. Francis Cissna lamented: “The truth is that we let those with criminal arrests for sexually assaulting a minor, kidnapping, human trafficking, child pornography, and even murder be provided protection from removal.”
Not only were some of the DACA beneficiaries—the so-called “Dreamers”—criminals before they received deferred action, but a number of them committed crimes after they were given a free pass. Of the group of DACA beneficiaries with prior arrests, 13 percent of them—nearly 8,000 aliens—were arrested for another crime after they were in the United States.
In a way, this is not surprising. Little resources were devoted to vetting DACA applicants, whose applications were rubberstamped, rather than given meaningful review. They were not charged an application fee sufficient to financially defray the costs of vetting of their applications. The fee charged was deliberately set as a tiny fraction of what the government charges for some other immigration applications, such as for a legal-immigrant (green card) application (generally over $1200) or for people expatriating from the U.S. (as of 2015, that fee was $2350, which the government justified by the purported need for money to process the related “paperwork” — paperwork that is simpler than that associated with a DACA application). Given the predictably massive flood of applications they received, and inadequate resources to vet them, bureaucrats simply approved them, even if the applicant failed to meet educational or law-abidingness requirements.
Although DACA purported not to be the basis for any right or benefit, some liberal judges cited it to override state law in order to extend rights and benefits, such as the Ninth Circuit Court of Appeals’ ruling that Arizona must give DACA recipients driver’s licenses.
Now, Judge Bates has gone much further, by blocking the Trump administration from ending DACA. He has done so based on an assumption at odds with DACA’s own terms: that it creates what are effectively rights for illegal aliens to remain in the country indefinitely, rather than — as DACA purported to do, to avoid being struck down by the courts — temporarily allowing them to remain in the country as an act of administrative grace. If DACA did create such a right to rely on it and remain in the country, then it was an invalid suspension of the law, at odds not only with the Constitution, but Anglo-American legal tradition. Suspensions of the law were anathema to the Founding Fathers, who cited as the model for their Revolution the English Glorious Revolution of 1689, which overthrew a monarch who suspended certain laws passed by Parliament.
Judge Bates has also effectively converted illegal aliens into a suspect class, by placing a demanding burden of justification on the government to justify taking away benefits from them. Such a demanding burden is a hallmark of heightened scrutiny under the Constitution for infringements on citizens’ fundamental rights, not the relaxed scrutiny that applies to agency decisionmaking such as decisions about whether or not to exercise prosecutorial discretion. Illegal aliens are not a suspect class, and denying them government benefits does not violate due process. DACA was not even issued through the notice-and-comment process, meaning that elaborate justification for its rescission is not legally necessary. Judge Bates effectively required a more detailed and explicit justification from the government than is required for far more suspect government actions, such as those that discriminate based on race or gender.
Moreover, the government provided a logical and sufficient justification. The reasons given for the govermment’s action in rescinding DACA — such as not incentivizing future waves of illegal immigration by minors, especially unaccompanied minors — are plainly valid, in any event. Judge Bates claimed that such fears were groundless, because DACA only applied to people who came to America prior to 2007. But this claim by the judge was itself illogical, because earlier amnesties beget later waves of illegal immigration. Once an earlier wave of illegal immigrants is granted amnesty — as happened in 1986 — later waves of immigrants come in the expectation that they, too, will receive amnesty.
As former Attorney General Edwin Meese, who signed off on the 1986 amnesty that Congress passed and President Reagan signed into law, later lamented in the Wall Street Journal:
Since the ’86 amnesty, the number of illegal immigrants has quadrupled. That should teach Congress a very important lesson: Amnesty “bends” the rule of law. And bending the rule of law…winds up provoking wholesale breaking of the law. Ultimately, it encourages millions more to risk entering the country illegally in the hope that one day they, too, might receive amnesty.
As former U.S. Attorney Peter Nunez noted in the San Diego Union-Tribune:
[T]he real problem with DACA, as with any form of amnesty, is the message it sends to the billions of poor and suffering people from around the world who would give anything to come here. That message says — if you can get here by hook or by crook — sooner or later we will give you legal status, let you stay, so you can then sponsor all your relatives to join you. Amnesties guarantee new, future illegal immigration. There is no disputing that the massive amnesty provided by the 1986 Immigration Reform and Control Act (IRCA) — 2.7 million people were granted legal status — contributed to the greatest wave of illegal immigration in the nation’s history. Since 2012, when the president invented DACA, we have seen unprecedented waves of illegal alien youth — unaccompanied minors — flood the border and receive temporary legal status.
In short, the fear that an amnesty like DACA will incentivize future waves of illegal immigration, is well founded, and fully justifies repealing DACA. It was anything but “arbitrary and capricious” for the government to so conclude. The appeals court should reverse Judge Bates decision in NAACP v. Trump (DC Civil Case No. 17-1907).
(In the above article, I used the terms illegal aliens and illegal immigrants interchangeably. Legally, illegal alien is the correct term, as I have explained in the past, since immigrants have the right to remain in a country permanently, whereas aliens — legal or illegal — do not; by definition, no illegal alien has the right to remain in the country. Illegal alien is a legal term that is used in Supreme Court opinions).