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August 06, 2014 3:32 PM Why DACA Isn’t An Unconstitutional “Power Grab”

By Ed Kilgore

Now that congressional Republicans have virtually forced the president into taking some sort of executive action to deal with the refugee crisis and set some sort of standards for deportations of undocumented immigrants, there’s a big hue and cry among conservatives that such action would represent an unconstitutional “power grab” (to use Ross Douthat’s term) that threatens the Republic.

As one might expect, Greg Sargent is on the case. In extensive interviews with former DHS General Counsel John Sandweg (who helped implement DACA) and former president of the American Immigration Lawyers Association David Leopold, Greg clarifies the legal basis for DACA (and any expanded DACA) and generally bats down a lot of objections.

The most important thing to understand is the vast gap between the number of undocumented people in this country and the federal government’s resources for detecting, arresting, prosecuting and deporting them. “Prosecutorial discretion” is not simply a convenience, it’s essential. DACA guides that discretion, and so would any DACA expansion. Beneficiaries, existing and prospective, do not receive any formal “legalization,” but simply a temporary assurance enabling them to function and to work. And any such assurance could be instantly rescinded, by this or future presidents.

Douthat’s very long argument calling this a “power grab” seems to rely on two ideas. One is that the potential scale of people affected by a DACA expansion is so very large that it dwarfs any precedent. But that scale is dictated by the scale of the undocumented immigrant problem. Even a very large expansion would leave many millions of the undocumented subject to prosecution and deportation far beyond the resources of the federal government. Discretion would still have to be used. Unless the claim is that it’s necessary to keep millions of people in perpetual suspense so that are more likely to “self-deport,” leaving the status quo in place is a policy decision just like any that Obama might make. His congressional critics could, of course, get serious about appropriating the many tens of billions of dollars that a universal or near-universal deportation stance would require. But they haven’t, have they?

Action or inaction by Obama in the absence of congressional activity is a policy decision with very large implications. He cannot escape it, and the status quo is hardly managable, as we supposedly all agree.

Ross’s second big argument goes to the temporary nature of a DACA assurance, which President Cruz or Ryan or Walker can instantly rescind:

Sure, in theory, but come on: That’s not how anyone on the left is actually looking at this idea — the assumption is that what’s done won’t really be undone, because loss aversion is too powerful, what’s given is hard (for good reasons) to take away, and the politics of stripping millions of people of legal status will be too awful for a Republican Party facing an increasingly Hispanic electorate to contemplate. (Especially if you give President Hillary a term or two in office first.)

This is a political argument Douthat is trying to blow up into a constitutional argument (a frequent recent habit of Obama’s critics, as I noted in a post on Mickey Kaus yesterday). If as Douthat suggests, Obama is trying to unfairly hijack immigration policy so that “liberal side of the argument” wins, what is it about the “conservative side”—which is increasingly focused on near-universal deportation of the undocumented—that can no longer be advanced? Do all the Republicans howling for deportations right now not mean what they are saying? Is herding someone towards the border in a truck or train car after taking away her DACA card that much more “awful” than deporting her without one? This strikes me as the complaint of a poker player with a really bad hand saying it’s unfair to call his bluff.

In any event, this argument is finally proceeding beyond sloganeering into reality, which is a signal advance for the long-stalled immigration debate in this country.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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