Congress will soon debate how to respond to President Donald Trump’s decision to terminate the Obama-era Deferred Action on Childhood Arrivals (DACA), which has allowed approximately 800,000 illegal immigrants who entered the US as children to have work permits after fulfilling certain requirements. Since Attorney General Jeff Sessions’ announcement on Tuesday, a lawyer who worked for Barack Obama to push for DACA has since admitted that the program is probably unconstitutional and that the former president knew this at the time. DACA was put into place by executive order in 2012.

Attorney Eric Columbus worked at the Department of Justice during the run-up to DACA. In late August, Columbus tweeted that because DACA is not legal, court challenges to Obama’s executive action are “very likely to succeed.” Columbus set out his observations in 38 Twitter posts, which he expanded in an article at Politico.com

In his sixth tweet, Columbus wrote that in June there were ten state attorneys general who were threatening to sue the Department of Justice unless Trump rescinded DACA. He tweeted, “Sad to say, I agree with the Trump administration that such a challenge to DACA is very likely to succeed.” Erstwhile DHS Secretary John Kelly told members of the Hispanic Caucus earlier this year that DACA would probably not survive. Indeed, in 2015, the U.S. Fifth Circuit Court of Appeals blocked Obama’s executive orders, having ruled that the policy forced states to support illegal immigrants with state funds and because the former president’s actions changed the status of millions of illegal immigrants without Constitutional justification. Obama ignored the ruling and went ahead.

Here follow Columbus’ tweets of August 29:

1. As a lawyer who worked for Obama on DACA issues, I’d like to explain what’s on Trump’s plate, how it got there, and what may happen.

2. DACA (Deferred Action for Childhood Arrivals) was created in 2012 to protect “Dreamers”
3. Essentially, DACA enables DHS to notify Dreamers formally – via a two-year permit – that they won’t be removed from the US.
4. Just as importantly, it renders them eligible to work legally and be eligible for certain benefits.
5. Candidate Trump promised to “immediately terminate” DACA. But he hasn’t, and in January he said DACA folks “shouldn’t be very worried.”
6. But on 6/29, ten state AGs wrote DOJ threatening to sue to kill DACA unless Trump agrees by 9/5 to phase it out.
7. Sad to say, I agree with the Trump administration that such a challenge to DACA is very likely to succeed.
8. The legal issues are *identical* to a suit that 26 states filed in 2014 to prevent us from implementing a new program called DAPA.
9. DAPA would have provided deferred action, and work authorization, to parents of US-born kids.
10. The 2014 suit also challenged an *expansion* of DACA announced at same time as DAPA. But it didn't challenge the original DACA program.
11. States won in district court and by a 2-1 vote on appeal. SCOTUS, after Scalia died, split 4-4, so the court of appeals decision stood.
12. We can presume the 4 who voted to invalidate were Thomas/Alito/Roberts/Kennedy. I'd bet a large sum that Gorsuch would join them.
13. It’s theoretically possible, of course, that someone – most likely Kennedy – could have a change of heart and save DACA.
14. Because SCOTUS doesn't bother writing opinions in tie votes, Kennedy’s slate is clean. He’s famously changed his mind in other cases.
15. But this is a slim reed on which to stake the hopes of the 780,000 people who benefit from DACA.
16. If the issues are identical, why didn’t the states try to kill DACA entirely in 2014? Probably because the Dreamers are too sympathetic.
17. They came here as kids, most brought by their parents. For many, the US is the only place they’ve ever considered home.
18. This may explain why, of the 26 states that sued in 2014, only 10 signed on to this letter.
19. Alas, the apparent opposition of 40 other states is legally irrelevant to whether DACA is valid exercise of federal executive authority.
20. What happens now? Oddly, the states’ threat isn’t consistent w/their request. They ask Trump to stop issuing DACA permits/renewals.
21. They’re *not* asking to rescind existing permits. So DACA folks would still be able to work legally until their 2-year permit expires.
22. However, the states’ letter says that if Trump refuses, they’ll sue to kill DACA *entirely* – presumably including current permits.
23. Seems they’re pushing Trump to be the heavy rather than bear sole responsibility for killing DACA in the courts.
24. Dreamer advocates want Trump to fight, not take a knee. Maybe Kennedy flips. Even if not, SCOTUS drama could compel Congress to act.
25. What will Trump do? If immigration reformers want him to do one thing, it’s a fair bet he'll do something else.
26. At the opposite extreme, I doubt he will go full sadist and terminate existing DACA permits.
27. I suspect he’ll announce he’s ending DACA but allowing existing permits to remain valid until expiration – i.e. what the states seek.
28. After expiration, DACA recipients would lose their jobs unless their employers choose to violate federal law. Few employers would do so.
29. But this *doesn’t* mean they must leave the US.  As states wrote, “this request does not require the federal govt to remove any alien.”
30. Indeed, throughout the earlier litigation the states emphasized that they weren’t challenging our efforts to prioritize who ICE pursues.
31. The states even suggested that we could issue cards identifying certain people as low-priority law enforcement targets.
32. Thus, if DACA gets repealed and a wave of Dreamers start getting rounded up, don’t let Team Trump tell you their hands are tied.
33. DHS can save Dreamers from removal if it tries.  This will require finesse and expending political capital, but they can do it.
34. And Congress can do far more. The DREAM Act would go beyond DACA and provide a path to citizenship.
35. But many conservatives won't back it unless they win stricter enforcement measures that Dems have opposed.
36. The past two presidents – with far greater legislative savvy than this one – tried and failed to strike such immigration deals.
37. Even if DREAM Act can’t pass now, GOP backers like @LindseyGrahamSC can use oversight authority to dissuade DHS from removing Dreamers.
38. Dreamers will likely find themselves further from their dreams – but it remains to be seen just how far & for how long.

END OF THREAD
 



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Martin Barillas is a former US diplomat and the editor of Spero News.

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