DACA Rescission 2.0 Is Good Policy. Amnesty Is Not

COMMENTARY Immigration

DACA Rescission 2.0 Is Good Policy. Amnesty Is Not

Jul 17th, 2020 4 min read

Commentary By

Lora Ries @lora_ries

Senior Research Fellow, Homeland Security

Hans A. von Spakovsky @HvonSpakovsky

Election Law Reform Initiative and Senior Legal Fellow

Charles "Cully" Stimson @cullystimson

Senior Legal Fellow & Manager, National Security Law Program

Failure to enforce our immigration laws is unfair to those immigrants who obey the law and follow the rules to enter the country legally.  David McNew / Staff / Getty Images

Key Takeaways

Our lawmakers and law enforcers must respect the rule of law, and immigration is no exception.

Encouraging more illegal immigration is a predictable consequence of providing amnesty, or even negotiating amnesty.

After such a hard-fought effort to gain control of the southern border, it makes no policy or operational sense to pursue amnesty for illegal immigrants.

Even those who cheered the Supreme Court’s controversial ruling last month regarding the Deferred Action for Childhood Arrivals program had to know the battle wasn’t over. It was, at best, a temporary stay of execution for DACA on purely technical grounds.

In its June 18 decision, a 5-4 majority held that the Trump administration could rescind the Obama-era DACA program created via the Department of Homeland Security's executive memo, but the current administration did not do so in a proper fashion because it had not given an adequate “policy” explanation for ending the program. 

As we at the Heritage Foundation have previously stated and written, this was a bad and timid decision. As Justice Samuel Alito said in his dissent, DACA was “unlawful from the start, and that alone is sufficient to justify its termination.”

The Trump administration is expected to rescind the DACA program again this week, giving an even fuller and more robust explanation of why it is ending a program that was illegal from the start. It should rescind it, not just because the program was unlawfully created, but because amnesty is bad policy. Our lawmakers and law enforcers must respect the rule of law, and immigration is no exception. Failure to enforce our immigration laws is unfair to those immigrants who obey the law and follow the rules to enter the country legally. 

President Trump did make some confusing comments regarding DACA last week, which White House communications staff has since clarified. He seemed to conflate two DACA approaches his administration appears to be pursuing: rescinding, for the second time, the illegal Obama administration executive action that created DACA and negotiating immigration legislation that would include amnesty (green cards) for people who entered the United States illegally at ages up to, and including, their teenage years. 

Rescinding DACA is necessary to uphold the rule of law and the constitutional separation of powers. No president has the power to override existing immigration law and establish a general administrative amnesty for illegal immigrants, even providing them with government benefits. 

Pursuing a legislative amnesty, however, is not only unnecessary but unwise. It would make our southern border less secure, cause even more foreigners to overstay their visas, and act as an incentive to attract even more illegal immigrants to the country.

The Heritage Foundation has repeatedly taken the position that those who enter and remain in the country illegally should not be rewarded with legal status or other benefits. When politicians condone such behavior, they only encourage further illegal conduct and contempt for the rule of law, a fundamental principle on which this country was founded. Encouraging more illegal immigration is a predictable consequence of providing amnesty, or even negotiating amnesty, which is why the White House negotiating DACA amnesty in legislation raises serious issues. 

Furthermore, pursuing such amnesty undermines the administration’s effort to rescind the current DACA program. Why spend the time and resources on a second attempt to end a benefits program only to then advocate for providing immigration benefits to these illegal immigrants? It seems an odd allocation of resources to again rescind DACA solely to fix procedurally what the Obama administration did.

More importantly, however, the White House should not negotiate amnesty for illegal immigrants for policy and operational reasons. Not only does amnesty encourage future illegal immigration, but this administration has witnessed that enforcing immigration laws and providing consequences to illegal immigration works to deter additional unlawful behavior.

Following the southern border crisis and record numbers of illegal border crossings in 2018 and 2019, the Trump administration implemented a substantial number of regulatory, policy, and operational changes using existing immigration law to deter illegal immigration and close loopholes that were exploited by illegal immigrants and human smugglers. These included the Migration Protection Protocols and requiring asylum applicants to seek asylum in the first safe country they travel to, rather than only applying for asylum in the U.S. It is also important to note the unprecedented shift in staff and financial resources that the departments of Homeland Security, Justice, and Defense implemented to gain operational control of the southern border. 

The methods worked. The number of illegal crossings decreased significantly. After such a hard-fought effort to gain control of the southern border, it makes no policy or operational sense to pursue amnesty for illegal immigrants. It is not only a slap in the face to those immigrants who come to the U.S. lawfully, but it also nullifies the significant sacrifices that so many people at the departments of Homeland Security, Justice, and Defense, and their families, made to secure our border successfully. 

Americans welcome legal immigration, but they want our borders secure. The Trump administration has made significant strides in achieving that objective. But if the administration wants to maintain that security, it should rescind DACA a second time and oppose any form of amnesty in the future.

This piece originally appeared in the Washington Examiner