Last month, the U.S. Supreme Court thwarted President Trump’s administration’s efforts to enforce the law and remove those that entered the country illegally, a crime per Title 8 U.S.C. § 1325, or overstayed their visas in its ruling in Department of Homeland Security, et al v. Regents of the University of California, et al.
Spin it any way you want, that is exactly what happened. Fortunately, however, the Court also left a trail of breadcrumbs that Department of Homeland Security (DHS) Acting Secretary Chad Wolf should be able to follow to put this issue to bed quickly once and for all.
I was in the room in 2012 when then-DHS Secretary Janet Napolitano and her staff came up with Deferred Action for Childhood Arrivals (DACA). I was vocal then that it was a huge mistake and it would result in many family units coming to the U.S. illegally so they can be the next DACA population. I was called a fear monger with no evidence. Over the next four years, hundreds of thousands of families and children streamed across the border. I was right. Rewarding illegal behavior just brings more.
DACA recipients, or “Dreamers” as some like to call them, will continue to remain in legal limbo in the United States now with “deferred action” (and work authorization, but we’ll get to that later). The almost 650,000 DACA recipients still have no true legal status in the U.S., just a deferral of the possibility of immigration enforcement. As a more than 30-year veteran of our nation’s immigration law enforcement system, that doesn’t sit right.
“Deferred action” means exactly what it says: Any action to remove these individuals who are not lawfully present in our country is deferred, for now. The Court did not grant legal status (which it doesn’t have the authority to do) or rule if the DACA program was in fact done legally (which the Court should have done). It merely said President Trump’s administration didn’t follow the Administrative Procedure Act and shut down the program according to the correct bureaucratic process.
I say common sense should have prevailed, but it didn’t. If a DHS secretary has the authority to create this program out of nowhere, why doesn’t a later DHS secretary have the authority to end it just as promptly, especially when the program is illegal?
The 5-4 DACA decision was written by Chief Justice John G. Roberts — who publicly disagreed when President Trump said the judicial system, particularly the Ninth Circuit, was politicized — and he was joined by the Court’s four liberals. Well, once again, we see the Chief Justice and the Court’s liberal wing dodge the real issue and kick it down the road, probably hoping for a new administration that will end the attempt so they don’t have to actually rule on the legal merits of the program. Instead of tackling the real issue, they opined that the administration did not follow bureaucratic procedures required by law to properly weigh how ending the program would affect those who had come to rely on its protections against deportation and their ability to work legally.
He admitted it, stating: “We address only whether the [Department of Homeland Security] complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”
What the majority really did was message to the criminal cartels that they are back in business. If you don’t think smugglers will use this decision to coerce people to come to the United States, then you haven’t been paying attention. You don’t need to have ever read an intelligence report or enforced immigration law. We saw the overwhelming surge of humanity crushing the border before. The wave will come again.
And what about the several hundred thousand family units that have entered our country illegally the past four years? They will continue to hide out, wait until the next DACA and claim their children came into the U.S. under no fault of their own, and the cycle continues.
In a classically scathing, direct hit to the heart of the matter, Justice Clarence Thomas, joined by the Court’s conservatives, said: “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents seek must come from the legislative branch.” He continued saying, the Court provided a “stopgap” measure to protect DACA recipients and “has given the green light for future political battles to be fought in this court rather than where they rightfully belong—the political branches.”
Whatever the nonsensical bureaucratic maneuvering and delays of the Court, fortunately, the next steps are clear. The Court provided a clear roadmap of the administrative process that must be followed and the matters that must be addressed in the next Secretarial memo ending the program.
In fact, it’s rather clear and fairly simple. Acting Secretary Wolf just needs to step up to the plate and get it done quickly. He needs to instruct his team of lawyers at DHS to work along with Attorney General Bill Barr’s lawyers at the U.S. Department of Justice to immediately address the deficiencies of the previous memo terminating the DACA program, as outlined by the Court, and issue a termination of his own. This administration must follow through because the rule of law must mean something.
Tom Homan is the former Acting Director of Immigration and Customs Enforcement and a Senior Fellow at the Immigration Reform Law Institute.