The Law and Politics of a DACA Expansion

I mentioned briefly yesterday that WaPo’s Greg Sargent had executed a deep dive into the legal issues surrounding DACA and a potential DACA expansion. You should read the whole thing yourself. But its essential points are (1) few of Obama’s critics really challenge his legal authority–granted by Congress–to issue immigration enforcement guidelines, which existed before DACA and before Obama; (2) the status quo, if left in place, involves less clarity but no more enforcement; and (3) the beneficiaries of DACA and any likely expansion of DACA have qualified by a significant record of good behavior; they are positive role models for other undocumented immigrants, not an inducement to new illegal behavior.

This last point should be emphasized. Thanks to the border refugee problem, it’s often assumed any new quasi-legalization initiative would serve to incentivize more illegal entries. Indeed, it’s somewhat dubiously assumed DACA itself had a lot to do with the current problem, even though the refugees don’t qualify (as the administration is making very clear in its public relations campaign in the countries-of-origin). But the basic issue is that illegal entries are probably incentivized more by the current lack of enforcement clarity than by any possible presidential efforts to set priorities. And indeed, it’s likely that when law-abiding folk who have already been here for years are taken off the table, the odds of being detected, arrested, prosecuted and deported will actually go up for others.

The big point remains is that there’s no way around setting enforcement priorities unless we either change the immigration laws or spend the many tens of billions–perhaps hundreds of billions–of dollars necessary to enforce them without discretion. The former route is being blocked by congressional Republicans, and nobody’s really talking about the latter.

Beyond that, as Greg repeatedly points out, the “political norms” objection to a big executive action on immigration, which once you boil off the rhetoric is the position most critics adopt, is maddeningly vague. What represents too much clarity in immigration enforcement? Is it strictly a matter of how many of the undocumented qualify? If so, how many are too many? A hundred thousand? A million? No one seems able to say, though I strongly suspect when it comes to most Republicans any number will be deemed too high.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.