Justice Department Tells Supreme Court: DACA Amnesty Is Illegal

PAUL J. RICHARDS/AFP/Getty Images
PAUL J. RICHARDS/AFP/Getty Images

President Barack Obama’s 2012 DACA amnesty is “at best … legally questionable; at worst, it is illegal,” the Department of Justice says in a legal brief to the Supreme Court.

The department’s legal brief says President Donald Trump has the political and legal authority to shut down the DACA amnesty for roughly 800,000 illegals who were brought into the United States by their parents.

But Trump’s 2017 shutdown has been stalled by progressive judges, forcing the U.S. Supreme Court to make the final decision. The court’s hearing on DACA is expected in November, and the decision is expected in early 2020, during the 2020 election campaign.

The lower courts’ decisions to preserve the DACA amnesty adds at least 500,000 foreign workers to the labor pool and harms Americans’ ability to raise their wages.

The lower courts’ intervention also denies Trump a big bargaining chip in routine congressional debates over immigration. For example, the courts’ intervention means neither the Democrats nor Trump can swap DACA in exchange for reforms of the nation’s loophole-ridden asylum and child-migrant rules. Those flawed rules have allowed several hundred thousand Central American migrants into the nation’s labor and housing markets since 2018.

The DACA amnesty also encourages more migrants to bring their children into the United States in the hope of getting a future DACA-2 amnesty. Democrat legislators have encouraged this hope by offering Dreamer legislation which amnesties illegals who arrived after Obama’s amnesty.

Pro-migration and business groups denounced the administration’s plea to enforce the nation’s popular immigration law.

“Today’s filing makes clear that the Administration continues to take every step possible to rip protections away from DACA recipients who know no other home than the United States,” said a statement from Todd Shulte, the director of FWD.us, which was created by West Coast investors, including Mark Zuckerberg. Schulte continued:

The DACA program has been incredibly successful, and the Supreme Court should reject these unlawful efforts to terminate this program, separate nearly 700,000 DACA recipients from their families, and deport them. More than eighty percent of Americans believe Dreamers should be able to stay in the United States, because they understand the valuable contributions that Dreamers make to our communities and to our country.

Schulte’s group favors large-scale immigration because it delivers more workers, consumers, and renters to FWD.us’s wealthy investors.

The administration’s legal brief says lower-level judges do not have the legal authority to prevent government officials from enforcing immigration law:

At best, DACA is legally questionable; at worst, it is illegal. Either way, DACA is similar to, if not materially indistinguishable from, the policies—including an expansion of DACA itself—that the Fifth Circuit previously held were contrary to federal immigration law in a decision that this Court affirmed by an equally divided vote. In the face of those decisions, DHS reasonably determined—based on both legal concerns and enforcement priorities—that it no longer wished to retain DACA. Yet two nationwide preliminary injunctions have forced DHS to maintain  this entirely discretionary policy for nearly two years …

Decisions about how the government will exercise enforcement discretion within the bounds of the law are uniquely entrusted to the Executive Branch. The [Administrative Procedure Act] APA’s judicial review provision thus does not apply. But even if DHS’s decision were reviewable, DHS’s legal and policy justifications for discontinuing DACA were not remotely arbitrary or capricious. DACA was created as a temporary, stopgap measure in 2012, after legislative efforts to provide permanent immigration relief for a similar class of aliens repeatedly failed. DHS has offered a number of reasons why it now wishes to withdraw that policy and instead enforce the INA as written, and the lower courts’ criticisms of those rationales do not withstand scrutiny.

The Justice Department also argued that the administration’s process for ending the DACA amnesty complies with the law:

Even assuming the rescission is reviewable, it is plainly valid. … Under the APA, the decision must be upheld unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

The courts below erred in second-guessing DHS’s entirely rational judgment to stop facilitating ongoing violations of federal law on a massive scale. In fact, many of her policy concerns echo those expressed by President Obama upon the announcement of the DACA policy itself. The President agreed with the Secretary’s assessment that unilateral executive action could not provide a permanent solution for DACA recipients: “This is not a path to citizenship. It’s not a permanent fix. This is a temporary stopgap measure.” The White House, Remarks by the President on Immigration (June 15, 2012),  (Obama Remarks). The policy itself acknowledges that it does not confer any lawful “immigration status,” because “[o]nly the Congress, acting through its legislative authority, can confer those rights.” Regents Pet. App. 101a. And precisely because the DACA solution was only “temporary,” President Obama agreed that “Congress need[ed] to act.” Obama Remarks. The Secretary reasonably determined that, in the absence of such congressional action, DHS should not maintain this temporary stopgap measure six years later.

The D.C. district court questioned whether the DACA policy could be blamed for the patterns of illegal immigration about which the Secretary expressed concern, noting that DACA was available only to individuals who have lived in the United States since 2007 and thus aliens who illegally entered the country more recently would not be eligible. NAACP Pet. App. 102a. But that misses the point entirely. Amnesty-like policies typically do not encourage further illegal conduct by expressly blessing it prospectively, but rather by “creat[ing] an expectation of future amnesties” and “[h]opes of gaining legal status conditional on living or working in the U.S. for a certain period of time.” Pia Orrenius & Madeline Zavodny, What Are the Consequences of an Amnesty for Undocumented Immigrants?

The cases are Department of Homeland Security v. Regents of the University of California, No. 15-587, Trump v. NAACP, No. 15-588, and McAleenan v. Vidal, No. 15-589, in the Supreme Court of the United States.

Immigration Numbers:

Each year, roughly four million young Americans join the workforce after graduating from high school or university. This total includes about 800,000 Americans who graduate with skilled degrees in business or health care, engineering or science, software, or statistics.

But the federal government then imports about 1.1 million legal immigrants and refreshes a resident population of roughly 1.5 million white-collar visa workers — including approximately 1 million H-1B workers and spouses — and about 500,000 blue-collar visa workers.

The government also prints out more than one million work permits for foreigners, tolerates about eight million illegal workers, and does not punish companies for employing the hundreds of thousands of illegal migrants who sneak across the border or overstay their legal visas each year.

This policy of inflating the labor supply boosts economic growth for investors because it transfers wages to investors and ensures that employers do not have to compete for American workers by offering higher wages and better working conditions.

This policy of flooding the market with cheap, foreign, white-collar graduates and blue-collar labor also shifts enormous wealth from young employees towards older investors, even as it also widens wealth gaps, reduces high-tech investment, increases state and local tax burdens, and hurts children’s schools and college educations.

The cheap-labor economic strategy also pushes Americans away from high-tech careers and sidelines millions of marginalized Americans, including many who are now struggling with fentanyl addictions.

The labor policy also moves business investment and wealth from the Heartland to the coastal cities, explodes rents and housing costsshrivels real estate values in the Midwest, and rewards investors for creating low-tech, labor-intensive workplaces.

 

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