One of the first choices that the Trump Administration will face after the upcoming inauguration is what to do about the “Dreamers.” The name Dreamer has been used both to refer specifically to the young adults currently participating in the Deferred Action Childhood Arrival program (DACA) and, more generally, to any undocumented residents of the United States who were brought to this country by their parents when they were minors.
It is not difficult to be sympathetic to the plight of the Dreamers. As undocumented residents of the United States, they were subject to immediate deportation under the law as it existed prior to 2012. However, these longtime residents of the United States often had little memory of their birth country and may not have spoken any language other than English. They grew up in the United States, and attended U.S. schools, and as a result they share the same hopes and dreams of any native born young adult. Moreover, they were not morally complicit in their parents’ decision to enter the United States. Prior to 2012, approximately 2 million people essentially found themselves trapped in a form of limbo – feeling American, unconnected to any foreign country, and yet unable to work lawfully in the United States or to plan for their future.
Legislation was first introduced in Congress in 2001 to resolve this situation and to permit these persons to obtain legal residence in the United States. Titled the Development Relief and Education of Alien Minors Act (or DREAM Act), this first bill and similar versions introduced in subsequent years were designed to create a 6-year pathway to permanent legal residency. To be eligible under the DREAM Act, a young adult had to have been brought to the United States at a young age, was required to be a college graduate or a military veteran (or be currently enrolled or enlisted), and could not have a criminal record. The DREAM Act and its successor bills boasted bipartisan support but never passed both houses of Congress, either as a standalone bill or as a component part of a comprehensive immigration reform package.
Frustrated by congressional inaction, President Obama chose to extend relief to the Dreamers in the form of a Presidential Directive. In 2012, the President issued a directive to the Secretary of the Department of Homeland Security to exercise prosecutorial discretion in order to defer the possible deportation of qualifying Dreamers. On June 15, 2012, DHS Secretary Janet Napolitano issued a memorandum setting forth the manner in which prosecutorial discretion would be exercised under the Deferred Action Childhood Arrival (DACA) program.
Individuals are eligible to apply for DACA if they:
- Were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching their 16th birthday;
Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
Had no lawful status on June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
Benefits of DACA include:
- The ability to apply for a drivers’ license (which is renewable as long as their DACA status is current);
- A social security card with a number that can be used for work authorization purposes only;
- A temporary “reprieve” from deportation; and
- The possibility of obtaining “advance parole”, or permission from the federal government to exit and re-enter the US lawfully during a specified period of time.
Approximately 740,000 people have applied for and received DACA status. For the first time in their lives, they can work lawfully, and can confidently make significant purchases such as homes, cars, or an investment in higher education.
The constitutional authority of the President to act via Presidential Directive is not in question. The DACA policy was not created via an Executive Order, as is often incorrectly asserted, and does not exceed the scope of directives issued by previous presidents. In November 2014, President Obama issued a series of Executive Orders expanding the DACA program and creating a similar program for the undocumented parents of U.S. citizen children. That second presidential initiative has proven more controversial and is currently tied up in federal court.
Because the DACA program exists as a policy directive and not as a congressional law, it can be changed or eliminated by a future executive action. During the presidential campaign, Donald Trump pledged to end the program (although he has softened his tone since the election). Understandably, Dreamers across the country are now anxious and fearful about the possible actions of a Trump Administration.
The Trump Administration could take three different approaches to the DACA program. First, President Trump could end the program immediately by issuing a new Presidential Directive. Obviously, this option would be the most disruptive to the lives of the Dreamers. They would immediately lose their jobs and would likely have to abandon their career ambitions. Second, he could allow current enrollees to maintain their benefits but act to prohibit any renewals or new applications. Under this scenario, current enrollees would continue in the program until the end of their 2 year benefit period, and the program would gradually die out over time. This second option would at least give the Dreamers some time work lawfully as they prepare for their change in status. Finally, President Trump could allow the DACA program to continue merely by doing nothing. He might pursue this option if it looked like Congress was on the verge of taking legislative action to pass a law that created similar benefits for the Dreamers.
Indeed, it is very possible that Congress will finally take legislative action in 2017 in order to create a statutory solution to the situation of the Dreamers. In the aftermath of the presidential election, a bipartisan effort to pass a legislative equivalent to the DACA program seems to have gained momentum. Of course, Congress could have taken action to address the plight of the Dreamers 16 years ago. Why might bipartisan action be possible now, when over a decade of congressional impotence on the issue ultimately inspired a frustrated President Obama to use his executive authority in order to address the problem?
The answer, of course, is politics. First of all, a standalone bill to benefit the Dreamers has been held hostage until now by legislators in Congress seeking a broader overhaul of the entire immigration system. Support for the Dreamers has always been one of the few truly bipartisan aspects of the congressional effort to enact a Comprehensive Immigration Reform bill. So long as there was some hope that a broader immigration bill might pass Congress, advocates of the broader bill opposed separate legislation to provide a lawful status for the Dreamers. Reform advocates feared that carving out the Dreamer provisions into a separate bill would lessen congressional support for the entire package. However, now that support for Comprehensive Immigration Reform has emerged as Republican kryptonite – fatal to the election hopes of any Republican candidate for office – there is no longer any rationale for holding Dreamer legislation hostage to a larger overhaul of the immigration laws.
Second, the Trump Administration will seek to avoid taking early actions that play into public fears of a divisive and punitive presidency. Any action to immediately inflict harm on sympathetic long-time residents of the United States will hurt Trump’s public image, and serve to embolden protests against other Trump initiatives. The Trump Administration can afford to take a “wait and see” approach to the Dreamers while it directs its immigration initiatives against less sympathetic segments of the undocumented population.
In sum, the clear and direct harm that any change in current executive policy would inflict on an identifiable group of individuals actually makes it less likely that President Trump will act. The Dreamers are so obviously vulnerable, and the connection between the action taken by Trump and the harm to that group so clear, that President Trump would be unable to avoid accountability for his action. The irony here is that by being so publicly helpless, the Dreamers are actually protected from punitive action.
In contrast, it is very likely that the Trump Administration will spare the Dreamers whilst simultaneously pursuing a variety of policies that cause very real but hidden harms to a less readily identifiable group of victims. Proposals to delay the retirement age for Social Security recipients, to decrease future benefit levels, and to replace Medicare with a more expensive private insurance program are all currently under serious consideration in Washington. If enacted, all of these initiatives will reduce the financial safety net for older Americans in ways that have a negative impact on people’s lives. However, the harm inflicted by these changes will be diffuse and hard to quantify, in the form of reduced benefit levels over multiple years, unlike the immediate and direct harm that the Dreamers would face. Moreover, the persons affected by such changes would be defined by their future economic status (middle class and lower income seniors) and therefore would be less readily identifiable to the general public than 740,000 Dreamers. Finally, the connection between the changes made to Social Security and Medicare and the responsibility of any one politician will be hidden in a haze of collective action and finger pointing. It is easy for politicians to support policies that inflict financial harm when they can avoid accountability for their actions.
There may well be a legislative reprieve for the Dreamers in 2017. But there is more than one kind of American dream. Many of us dream of financial security in our old age. That may well prove to be the dream most at risk in a Trump Administration.