By Jay Weiser
(Reprinted from The American Interest: https://www.the-american-interest.com/2017/09/05/harvey-helps-daca/)
President Donald Trump has decided to end the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program, finally acting after months of on-again, off-again threats. DACA’s termination is the latest expression of the incoherence of American immigration policy. The program began as an Obama Administration effort to regularize the status of undocumented immigrants who had grown up in the United States, then morphed into an identity-politics effort to rule by decree, which in turn led to a nativist backlash that helped elect Trump. Meanwhile, Hurricane Harvey, which will require
massive numbers of immigrant construction workers for reconstruction, has just jolted the underlying assumptions of immigration policy. The politics of purity—on both sides—needs to give way to a continuation of DACA and a realistic Harvey visa waiver program.
DACA, Overreach, and Reaction
There are 11.1 million unauthorized immigrants in the United States, according to a 2014 Pew Research Center study, with 66 percent here for ten years or more. It is neither desirable nor humane to deport this many people, as demonstrated by the Eisenhower Administration’s sordid Operation Wetback, nor are there enough immigration enforcement resources to do it. Given the size of the undocumented population, the Department of Homeland Security is forced to allocate enforcement resources. Anticipating Trump policies, the Obama Administration refocused deportation efforts against the roughly 690,000 unauthorized immigrants with serious criminal convictions. It stepped up deportations to about 360,000 people per year, yet immigration courts have a 520,000 case backlog.
In 2012, as part of its triage, the Obama Administration limited enforcement against unauthorized immigrants who had come to the United States as children. Legislatively inept, Barack Obama had previously failed to address the issue by getting Congress to pass the DREAM Act (standing for Development, Relief, and Education for Alien Minors). Instead, in “I’ve got a pen and I’ve got a phone” mode, Obama had the Department of Homeland Security promulgate DACA as an executive action—an interpretive memorandum from then-Secretary Janet Napolitano. As Case Western Reserve University law professor Jonathan Adler pointed out, because the Obama Administration promulgated DACA through executive action rather than the ordinary rule-making process (which would have provided opportunities for comment), the Trump Administration had similar discretion to end it.
The Obama Administration executive action covered illegal immigrants who came to the United States before age 16; who, as of 2012, had lived in the country for at least five years and were not more than age 30; who are in school, are high school graduates, or are military veterans in good standing; and who have clean criminal records. People who qualified (known by the media-friendly name of “Dreamers”) received deferred action on deportation for two years, with the ability to renew their status, and could receive work permits.
In a 2012 Pew Research Center survey, 63 percent of U.S. adults supported DACA—a level of support nearly identical to that in a recent NBC News/Survey Monkey poll. As of March 2017, the Pew Research Center estimated that up to 1.1 million unauthorized young adult immigrants were eligible for DACA, and nearly 790,000 applications had been approved.
Notwithstanding the broad support for DACA, the righteous never sleep. In 2014, the Obama Administration doubled down with its Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. DAPA used executive action to promulgate protections for an additional 4 million young adults and their parents—or, combined with DACA, nearly 50 percent of the undocumented population. Twenty-six state attorneys general sued, and in 2016, a divided U.S. Supreme Court affirmed an injunction against DAPA.
In contrast to the anti-immigration state attorneys general, the Left has opposed virtually all immigration enforcement, notably in the sanctuary cities movement. After the 2016 election, with the potential threat to DACA students in college, many professors and students embraced the related campus sanctuary movement, which implicitly views colleges—and their inhabitants sharing politically correct views on gender identity, race, and ethnicity—as holy and above the law. Michael Roth, president of upscale sanctuary campus Wesleyan University, falsely asserted that “mass deportation doesn’t have any basis in American law.” Sanctuary didn’t work out so well for Thomas Becket and, by polarizing American opinion, it isn’t working well today.
In the latest installment of the drama, nine anti-immigration state attorneys general threatened to seek judicial relief against DACA on September 5 unless the Administration terminated the program. They claimed that Congress must legislate, perhaps in an effort to embarrass the tough-on-immigration President Trump into action. In response, Attorney General Jeff Sessions issued a memo stating that DACA is unconstitutional—even though courts ordinarily defer to executive action unless it is arbitrary. Given limited enforcement resources, many courts would find that the Executive was not arbitrary in assigning low-risk Dreamers a low enforcement priority—and the Trump Administration itself concedes that Dreamers will be low priority. Furthermore, the Jim Crow period demonstrated the social costs of excluding groups from education and access to workforce advancement.
The Trump Administration has stopped accepting new DACA applications, and the program will expire on March 5, 2018. The two-year work permits issued to Dreamers will not be renewed, and will expire, according to one estimate, at a rate of about 1000 a day.
Drenched by Reality
Even if ideological purity justified upending the status of nearly 800,000 low-risk undocumented immigrants, the Trump Administration and state attorneys general have just been rained on by reality, in the form of Hurricane Harvey’s 50 inches. Current estimates are that 200,000 homes were damaged, nearly one quarter of U.S. oil refining capacity was shut down and 13 Superfund sites were flooded. Additional flash flooding is still a risk, and recovery could cost $180 billion.
Even before Harvey, the United States faced a shortage of 150,000 construction workers (about 1.5 percent of total industry employment)—the result of the 2008 bust, George W. Bush and Obama Administration deportations of undocumented workers, and the decline of American vocational education. In 2013, immigrants comprised nearly 40 percent of the Texas construction workforce, suggesting that much of the additional Harvey reconstruction labor will need to come from Mexico and Central America.
There is an immediate need for cleanup workers to limit water damage and mold contamination, but the Trump Administration has announced that it will keep employment verification requirements in place for construction workers, in contrast to the George W. Bush Administration’s policy post-Hurricane Katrina. As a real estate developer, the President surely understands that if restoration is delayed because of labor shortages, the losses will be compounded.
President Trump has indicated that he would support DACA legislation. It would be desirable for Congress to rationalize immigration policy, but it has already failed to enact health care reform, and its calendar is now filled with proposed hurricane relief, debt ceiling, and tax reform legislation. If Congress can’t turn legislative (or Harvey) water into wine, Dreamer deportations will become a human tragedy and public relations nightmare, even as the pressure builds for Trump Administration executive action to grant mass visa waivers for construction workers.
Within weeks, the Trump Administration (not to mention Texas attorney general Ken Paxton, who spearheaded the threatened lawsuit) will find it awkward to have ended DACA while Harvey-hit states are demanding tens of thousands of construction worker visa waivers. As our native New Yorker President should appreciate, DACA is now a third rail submerged in water. He has waded in.
Jay Weiser is Associate Professor of Law and Real Estate at Baruch College, CUNY