SEN. DURBIN CAUTIONS: DACA WIN COULD BE TEMPORARY
‘Have a family party tonight, and this weekend, keep looking over your shoulder.” That’s advice from the founder of the Dreamer movement, Sen. Dick Durbin, D-Ill., after the Supreme Court’s 5-4 decision on Thursday blocked President Donald Trump from ending the Deferred Action for Childhood Arrivals program, known as DACA.
Chief Justice John Roberts, writing for the majority — that is, the conservative Roberts joining with the liberals Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer — concluded in his opinion that the process used by Trump to yank Obama-era protections for youths brought to the U.S. illegally through no fault of their own was “arbitrary and capricious.”
That narrow decision leaves open the possibility Trump — making anti-immigration a centerpiece of his presidency and his reelection bid — can try again.
“This isn’t resolved until this president says, ‘I’m not going to go after DACA for some period of time,’” Durbin told the Sun-Times.
“He could do it again tomorrow. And it would be challenged in court again, I’m sure. But that’s the problem with this issue: It just doesn’t go away. But it could have been decided the other way today, and that could have been disastrous,” said Durbin, who has been crusading for Dreamer protections for more than 18 years.
Various versions of the Development, Relief, and Education for Alien Minors Act — known as the DREAM Act — have failed to pass Congress for years — the Senate is the sticking point — and that’s the reason Dreamers have never won permanent protections.
For the time being, some 700,000 Dreamers are not subject to deportation.
That Dreamers remain in limbo is a product of the inability of Congress to pass a law to protect them once and for all. Presidential initiatives are not as strong as a law.
How this started: Obama gave up on Congress
At 2:09 p.m. on June 15, 2012 — a bit more than eight years ago — then-President Barack Obama gave up on Congress passing an immigration bill to protect Dreamers after multiple failed attempts stretching over a decade.
In a speech from the White House Rose Garden, Obama said he told the Department of Homeland Security to “lift the shadow of deportation from these young people. Over the next few months, eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization.”
He called his move “a temporary stopgap measure.”
What one president gives, another can take away — if done right, which, the Supreme Court said Thursday, Trump did not do in June 2017, when he told the Homeland Security secretary to end Obama’s Dreamer protections.
“We do not decide whether DACA or its rescission are sound policies,” Roberts wrote, faulting how Trump’s team applied the Administrative Procedure Act.
Sotomayor, the first and only Hispanic justice, said in so many words that it’s rubbish to apply a legally antiseptic approach to the Dreamer issue.
In her separate opinion, Sotomayor noted the justices’ approach “minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation.”
Sotomayor also wrote, “The impact of the policy decision must be viewed in the context of the president’s public statements on and off the campaign trail.”
Sotomayor and Justice Clarence Thomas brought the real world into their opinions.
Thomas wrote about how Obama “took matters into its own hands” just as Trump did in 2017. Noted Thomas, “To state it plainly, the Trump administration rescinded DACA the same way that the Obama administration created it: unilaterally, and through a mere memorandum.”
Thomas added, “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”
The real solution is for Congress to pass a law.
Two questions
Will the GOP-controlled Senate take up a Dreamer bill? Only if Trump decides he needs it to win Colorado and Arizona, swing states with Hispanic populations. Senate Majority Leader Mitch McConnell also knows those two states have vulnerable Republican senators, and a Dreamer measure could help them.
Will Trump try again with a cleaned-up version of his order? Maybe.
Trump said in a tweet, “I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again.”