How To Re-Open The Government By Breaking The DACA Stalemate

REUTERS/Mike Blake

Lew Olowski Attorney
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“Compromise” is the dirty word of the day: neither Republicans nor Democrats are willing to compromise their positions on immigration policy. But neither party has to compromise.

In fact, we can end this federal government shutdown and resolve the immigration issue without either side conceding to the other. Specifically, Senate Democrats would have joined Republicans in funding the federal government last week if the funding resolution also supported a “path to citizenship” for certain immigrants unlawfully present in the United States. That path to citizenship, however, is an obstacle against Democratic and Republican agreement on immigration policy; both parties can get what they want from immigration policy without tying it to citizenship.

The sticking point over this federal government shutdown is DACA: Deferred Action for Childhood Arrivals. Under DACA, certain young people who unlawfully entered the United States when they were minors can avoid deportation. These people are often referred to as “Dreamers.” That’s because the president created DACA when Congress declined to pass the DREAM Act (Development, Relief, and Education for Alien Minors Act). The DREAM Act would have allowed these young people to apply for permanent residency in the United States and, eventually, citizenship. Instead, DACA allows them to apply for two-year deferments against deportation.

In September, President Trump announced that he would decline to grant or renew future DACA applications. He called on Congress to pass comprehensive immigration reform. Congress hasn’t done that yet. Last week, however, Congress reached a deadline on appropriating money to fund the federal government. Democrats insisted that Congress should not fund the federal government unless it also decides what to do about DACA applicants. Republicans insisted that Congress should appropriate funds immediately and resolve DACA afterward.

But the House of Representatives passed a resolution to appropriate funds to the federal government that did not include a decision about DACA. Therefore, not enough senators supported the resolution for it to pass the Senate. Consequently, the federal government did not obtain the funds necessary to continue its operations in full. So each federal agency instead followed a low-budget contingency plan that leaves “essential services” intact while pausing the rest of its normal operations.

Today, the Senate might vote to appropriate funds to the federal government. If it doesn’t, the shutdown will continue. But, even if Congress does appropriate a few weeks’ worth of funds to the federal government, Republicans and Democrats will still be at an impasse over DACA.

The path to citizenship is an obstacle against Democrats and Republicans’ potential agreement on DACA. President Trump and senator Chuck Schumer (the leader of the Democratic party in the Senate) agree that DACA applicants should not be punished for unlawfully entering the United States when they were minors.

Many DACA applicants were brought here by their parents. All of them seem to have made basic investments in their own economic potential and have avoided serious criminality. Deportation would uproot them from the United States — they’d lose their American jobs, friendships, and future plans — and restore them to their countries of origin and citizenship. Thus deportation would appear to punish them for their parents’ lawbreaking.

The way forward, then, is for Congress to grant permanent residency to DACA applicants — not citizenship. Permanent residency — the “green card” — satisfies every economic and humanitarian benefit that DACA advocates purport to care about. Permanent residents enjoy the protections of the U.S. Constitution. They can get jobs, obtain property, and travel internationally. Permanent residents have the right to live in the United States for the rest of their lives while still having citizenship with their countries of origin. Permanent residency would be a tremendous benefit for DACA applicants, who presently have no legal status in the United States and are therefore subject to deportation.

Citizenship, however, is a deal-breaker. To be a citizen is to have an ownership stake in the government. It’s a privilege reserved to people who were either born in the United States or who entered lawfully and followed U.S. laws for many years. Countless people have entered the United States and returned to their countries of origin specifically to comply with U.S. laws —
students, tourists, temporary workers, or even people that “self-deported” once they discovered that they were unlawfully present in the United States.

The main difference between DACA applicants and such law-abiding foreign citizens is that DACA applicants are knowingly breaking the law. We shouldn’t punish people for their parents’ lawbreaking. But we shouldn’t reward people for their own lawbreaking, either. Every DACA applicant is by definition aware that he is unlawfully present in the United States and is choosing to remain here illegally instead of returning to his country of origin, where he is already a rightful citizen.

Of course, even permanent residency without a path toward citizenship is a “reward” for DACA applicants’ continued violation of U.S. law. And granting permanent residency to DACA applicants would be unfair to the countless foreign citizens who are denied this privilege specifically because they complied with U.S. law instead of illegally settling in the United States.

But the differences between permanent residency and citizenship matter. A permanent resident who commits serious crimes can still be deported: since DACA applicants make up for their unlawful presence by otherwise respecting the law (e.g. not committing felonies), this expectation should be a permanent condition of their presence in the United States. And because other foreign citizens have worked hard over many years to obtain U.S. citizenship through the naturalization process — while countless foreign citizens will never become U.S. citizens or even permanent residents specifically because they’ve respected U.S. law — it would be unfair to provide an ownership stake in our government to people whose very presence began illegally and who knowingly continued to violate U.S. immigration law.

Permanent residency for DACA applicants without the possibility of citizenship is a win-win for Democrats and Republicans. It permanently provides Dreamers with the social and economic benefits of living in the United States for the rest of their lives — as well as with continued citizenship in and travel to their countries of origin — while still preserving fundamental fairness and the rule of law in American immigration policy.

Lew Jan Olowski is a married father of two and an attorney in Maryland.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.