Thursday, September 14, 2017

The DREAM Act Should Apply Prospectively As Well As Retrospectively

by Michael Dorf

With the emergence in the last week of Bipartisan Trump, we face the prospect of congressional implementation of a statute that replaces DACA (Deferred Action for Childhood Arrivals) sooner rather than later. Despite some ambivalent tweeting, it now appears as though Trump has agreed in principle with Chuck Schumer and Nancy Pelosi to enshrine DACA in legislation that also includes additional border security measures (but not border wall funding). Between Democrats and pro-business (and thus pro-immigration) "establishment" Republicans, there is likely majority support in Congress for such a measure.

It remains, possible, however, that nothing will pass. After all, during the Obama presidency there also was majority support in Congress for some sort of moderate compromise on immigration that included protection for the Dreamers, but it was not passed then. Why not? Partly the answer is that even establishment Republicans who, if they had their policy druthers, would support immigration reform, were reluctant to do anything that could be seen as giving Obama a "victory." But that was not the only obstacle. Republican Senators and House members were also afraid of crossing the GOP base. Nothing fuels Republican primary challenges from the right quite like anti-immigration fervor, with the David Brat victory over Eric Cantor serving as Exhibit A.

How this will all play out now that Trump has gone soft on the Dreamers is anybody's guess. From talk radio to the halls of Congress, the leadership of the far right is freaking out about Trump's appearing to go soft on immigration. As the Bard of Sioux City (as Steve King is justifiably not called by anybody) tweeted: "@RealDonaldTrump If AP is correct, Trump base is blown up, destroyed, irreparable, and disillusioned beyond repair. No promise is credible."

But much of Trump's support is tribal and primal rather than policy-driven. If his base remains loyal, then Trump could sign a congressional DACA replacement, which in turn could lead enough House and Senate Republicans to join with Democrats in voting for it, on the premise that Trump's support gives them cover against an anti-immigration-fueled primary challenge. As the president likes to say, "we'll see."

Meanwhile, if it does pass, what should the congressional replacement for DACA look like? By definition, it should be more generous than DACA itself in at least one important way. Because any legislation Congress passes would be, well, legislation, it need not merely defer action pursuant to the exercise of prosecutorial discretion. Rather, Congress can grant actual legal status.

But what status? On multiple occasions over the last 16 years, various versions of the DREAM Act have been introduced in Congress. One passed the House in December 2010, only to succumb to a Senate filibuster. Both before and after, other versions of the DREAM Act have been introduced.

For example, one version was proposed in the House less than a couple of months ago by Rep. Lucille Roybal-Allard (D. Cal). It would grant Dreamers conditional permanent resident status, with the conditions to be lifted upon completion of two years of college, two years of military service, or three years of employment (with a hardship exception), so long as they have been otherwise law-abiding.

Other versions of the DREAM Act make dreamers jump through some additional hoops, but they all have more or less the same structure: They provide a path to legalization for people who were brought to the U.S. as children, have been law-abiding, and are now looking to be productive citizens. Anything likely to pass would have those basic characteristics.

What should the legislation say about future Dreamers? Although more generous than some other versions of the DREAM Act in various respects, even Rep. Roybal-Allard's proposal is retrospective only. It would apply to Dreamers who were continually physically present for four years before its enactment. That cashes out to create a new class of disadvantaged Dreamers.

Suppose the Royal-Allard bill passes on Dec. 1, 2017. Note what happens to undocumented immigrant minors who came to this country on or after Dec. 2, 2013: They will be ineligible for protection. A girl who was brought here at, say, the age of six on Dec. 2, 2013, could not benefit from the Act and would remain deportable. To my mind, this is unduly harsh. If current Dreamers deserve an opportunity to obtain green cards, so should future Dreamers who will be similarly situated.

What is the rationale for distinguishing current from future Dreamers? One possibility is the desire to avoid incentivizing illegal border crossings. However, non-citizens seeking to provide legal status for their children already have an incentive to cross illegally via the citizenship clause of the Fourteenth Amendment, and nothing in legislation can change that; yet despite much talk about "anchor babies," this appears to be a very limited phenomenon. The number of children born to undocumented immigrants is mostly a function of the number of undocumented immigrants present in the country (as reported by Pew), which, in turn, responds chiefly to economic conditions. And if one thinks--as President Trump and Republicans in Congress apparently think--that increased border security will further dampen illegal border crossings, then the additional border security measures included in any version of the DREAM Act that secures passage should make its extension into the future even less problematic.

Accordingly, I see no good policy reason why the DREAM Act should not create a program whereby childhood arrivals obtain green card eligibility going forward, not just retrospectively. It's possible that the time limit will be necessary as a political matter to secure agreement, but the politics also could play out the other way. Passing something like the Royal-Allard bill would mean that in just a few years Congress would need to act again to provide for relief of a new (even if somewhat smaller) cohort of Dreamers. Members of Congress who want to get this off their plate for once and for all thus have good reason to pass a version that applies prospectively. Doing so would also allow Trump to boast a HUGE legislative accomplishment.

3 comments:

Shag from Brookline said...

The first line of this post included the phrase "Bipartisan Trump." Before reading on, based upon reactions, perhaps we can next expect "Bipolarization Trump." Or did we have that to begin with?

Be that as it may, Mike's proposal would be a positive for America, IF Congress and Trump agree. And that's a big "IF."

Joe said...

Bipolar? Yes, as to Shag's final sentence.

Shag from Brookline said...

"Bipolar?" "Yes," says Bill Maher.