This was supposed to be about how all of yesterday’s heated rhetoric, all the defiant “Stand by Your Dreamer” talk from Harvard and from tech CEOs, was just so much theater. In truth, no one — at least no one law-abiding — is going to be much inconvenienced, let alone deported, over President Trump’s supposed “rescission” of President Obama’s unconstitutional Deferred Action for Child Arrivals (DACA) program. As I explained yesterday, a proper application of prosecutorial discretion would place young aliens who were brought to this country illegally (or maintained here illegally) by their parents — that is, through no fault of their own — in a low-priority enforcement status. With the exceptions of those arrested for serious crimes, those with extensive criminal records, or those presenting similar sociopathic circumstances, the DREAMers would be left alone.
Alas, there is a different reason to see the still ongoing hysteria as a waste of time.
Trump has just quasi-frozen matters for six months. He explicitly says that he wants Congress “to legalize DACA” (i.e., enact the existing program so he can sign it into law). Moreover, if the people we used to think of as lawmakers fail to codify DACA, Trump says that he “will revisit this issue!” Translation: The program won’t die; the president will simply re-extend it by executive action while encouraging Congress to continue working to pass it — just like Obama.
I argued during the GOP nomination battle that Trump is a phony on immigration. He camouflages this fact in provocative (and sometimes noxious) rhetoric about Mexicans and a border wall — a wall that would be physically impossible to build as he described it and that Mexico was never going to pay for. (Have you noticed our coming budget battle is over his insistence that American taxpayers foot the bill?) But if you listened carefully, there was always an amnesty subtext. Recall his truly absurd claims that he would round up and deport 11 million people and then bring most of them back with legal status.
The DACA sleight of hand proves the point. On the hustings, restrictionist Trump promised to rescind DACA as soon as he took office (and some people actually believed him). Of course, he did not do so . . . because he doesn’t think it should be rescinded; he thinks it should be law. But he wants credit for ending it — for being both against and for it.
Because Democrats (and many pro-amnesty Republicans) are insufficiently sympathetic to the demands of Americans for better security and tighter immigration controls, there must be tradeoffs if the ruling class is to be motivated to negotiate.
Consistent with this utterly inconsistent approach to DACA, nothing he has done as president makes sense. He has contended (correctly) that DACA is unconstitutional, yet he has continued administering the program for the past eight months. He has now had his attorney general announce that the program is rescinded because it is unconstitutional, but the program is not really rescinded and — as Jack Goldsmith rightly pointed out on Twitter yesterday — the Justice Department has not withdrawn the Obama DOJ’s 2014 opinion supporting DACA’s purported constitutionality.
The only “action” Trump has taken is to bar new DACA applications for six months, starting now. Over those same six months, though, any pending applications will continue to be considered (and, in the main, granted, you can bank on it); and any two-year work permits that would otherwise expire will be reauthorized. But if the program is unconstitutional because a president has no authority to confer, among other things, such positive legal benefits as work permits, what is the legal rationale for continuing it for another half-year (having already continued it for eight months), during which the work permits will continue to be issued and honored?
Now, after all of Attorney General Sessions’s huffing and puffing yesterday, Trump not only announces that he wants the program legalized; he further signals that he is prepared to continue going Obama’s executive-action route if Congress cannot get a bill passed. If you are a congressional Democrat, why would you agree to anything but a straight-up codification of DACA? What conceivable reason would you have to negotiate and make concessions on the improvements discussed in our NRO editorial on DACA yesterday — border security, E-Verify, or the RAISE Act?
If DACA were narrowly drawn, strictly to benefit the immigrants whom Democrats and the GOP establishment portray as the typical DREAMer (a young person brought to the U.S. as a child, who is not responsible for his illegal status and is an American for all intents and purposes), then many of us would support it, and it would already be law.
There are two reasons it is not. First, it is not narrowly drawn; rather, it designed to shoehorn a broader array of illegal aliens into legal status. Second and more significantly, because Democrats (and many pro-amnesty Republicans) are insufficiently sympathetic to the demands of Americans for better security and tighter immigration controls, there must be tradeoffs if the ruling class is to be motivated to negotiate. Those of us who are sympathetic to authentic DREAMers, and who would even swallow hard and accommodate faux “dreamers,” are not so sympathetic or so anxious for a deal that we would make it without getting concessions in return.
The outlines of a fair legislative compromise are easy to make out. But the bargain is never made because one side calculates that there is no reason to negotiate. They figure they’ll eventually get their way without giving up anything.
Trump has reconfirmed them in their intransigence. Art of the deal, huh?
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.