As we get ready to find out exactly what the Trump administration has planned for DACA — we’re hearing the president will kick the can down the road for 6 months — here’s a great thread to read from lawyer Eric Columbus who worked for team Obama on DACA. It’s long, but the money quote comes in No. 7 where he admits that a court challenge to DACA “is very likely to succeed.” Which, of course, means DACA is probably unconstitutional and that this fight was coming no matter who was president.
Also read from 27 on down where Columbus explains what the states who want to sue to end DACA are actually asking for. In short, it’s not mass deportations.
THREAD: 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.
— Eric Columbus (@EricColumbus) August 29, 2017
2. DACA (Deferred Action for Childhood Arrivals) was created in 2012 to protect “Dreamers” – who came to US as kids but aren't here legally.
— Eric Columbus (@EricColumbus) August 29, 2017
3. Essentially, DACA enables DHS to notify Dreamers formally – via a two-year permit – that they won’t be removed from the US.
— Eric Columbus (@EricColumbus) August 29, 2017
4. Just as importantly, it renders them eligible to work legally and be eligible for certain benefits.
— Eric Columbus (@EricColumbus) August 29, 2017
5. Candidate Trump promised to “immediately terminate” DACA. But he hasn’t, and in January he said DACA folks “shouldn’t be very worried.”
— Eric Columbus (@EricColumbus) August 29, 2017
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.https://t.co/XDv2ZLk4Xp
— Eric Columbus (@EricColumbus) August 29, 2017
7. Sad to say, I agree with the Trump administration that such a challenge to DACA is very likely to succeed. https://t.co/L99Y6aCseU
— Eric Columbus (@EricColumbus) August 29, 2017
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.
— Eric Columbus (@EricColumbus) August 29, 2017
9. DAPA would have provided deferred action, and work authorization, to parents of US-born kids.
— Eric Columbus (@EricColumbus) August 29, 2017
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.
— Eric Columbus (@EricColumbus) August 29, 2017
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.
— Eric Columbus (@EricColumbus) August 29, 2017
13. It’s theoretically possible, of course, that someone – most likely Kennedy – could have a change of heart and save DACA.
— Eric Columbus (@EricColumbus) August 29, 2017
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.
— Eric Columbus (@EricColumbus) August 29, 2017
15. But this is a slim reed on which to stake the hopes of the 780,000 people who benefit from DACA.
— Eric Columbus (@EricColumbus) August 29, 2017
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.
— Eric Columbus (@EricColumbus) August 29, 2017
17. They came here as kids, most brought by their parents. For many, the US is the only place they’ve ever considered home.
— Eric Columbus (@EricColumbus) August 29, 2017
18. This may explain why, of the 26 states that sued in 2014, only 10 signed on to this letter.
— Eric Columbus (@EricColumbus) August 29, 2017
19. Alas, the apparent opposition of 40 other states is legally irrelevant to whether DACA is valid exercise of federal executive authority.
— Eric Columbus (@EricColumbus) August 29, 2017
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.
— Eric Columbus (@EricColumbus) August 29, 2017
22. However, the states’ letter says that if Trump refuses, they’ll sue to kill DACA *entirely* – presumably including current permits.
— Eric Columbus (@EricColumbus) August 29, 2017
23. Seems they’re pushing Trump to be the heavy rather than bear sole responsibility for killing DACA in the courts.
— Eric Columbus (@EricColumbus) August 29, 2017
24. Dreamer advocates want Trump to fight, not take a knee. Maybe Kennedy flips. Even if not, SCOTUS drama could compel Congress to act.
— Eric Columbus (@EricColumbus) August 29, 2017
25. What will Trump do? If immigration reformers want him to do one thing, it’s a fair bet he'll do something else.
— Eric Columbus (@EricColumbus) August 29, 2017
26. At the opposite extreme, I doubt he will go full sadist and terminate existing DACA permits.
— Eric Columbus (@EricColumbus) August 29, 2017
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.
— Eric Columbus (@EricColumbus) August 29, 2017
28. After expiration, DACA recipients would lose their jobs unless their employers choose to violate federal law. Few employers would do so.
— Eric Columbus (@EricColumbus) August 29, 2017
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.”
— Eric Columbus (@EricColumbus) August 29, 2017
30. Indeed, throughout the earlier litigation the states emphasized that they weren’t challenging our efforts to prioritize who ICE pursues.
— Eric Columbus (@EricColumbus) August 29, 2017
31. The states even suggested that we could issue cards identifying certain people as low-priority law enforcement targets.
— Eric Columbus (@EricColumbus) August 29, 2017
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.
— Eric Columbus (@EricColumbus) August 29, 2017
33. DHS can save Dreamers from removal if it tries. This will require finesse and expending political capital, but they can do it.
— Eric Columbus (@EricColumbus) August 29, 2017
34. And Congress can do far more. The DREAM Act would go beyond DACA and provide a path to citizenship.
— Eric Columbus (@EricColumbus) August 29, 2017
35. But many conservatives won't back it unless they win stricter enforcement measures that Dems have opposed. https://t.co/f3sAmMzNhb
— Eric Columbus (@EricColumbus) August 29, 2017
36. The past two presidents – with far greater legislative savvy than this one – tried and failed to strike such immigration deals.
— Eric Columbus (@EricColumbus) August 29, 2017
37. Even if DREAM Act can’t pass now, GOP backers like @LindseyGrahamSC can use oversight authority to dissuade DHS from removing Dreamers.
— Eric Columbus (@EricColumbus) August 29, 2017
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
— Eric Columbus (@EricColumbus) August 29, 2017
***
Join the conversation as a VIP Member