Immigration "reform" in the US

Deferred Action for Childhood Arrivals “DACA” is Presidents Obama’s initiative to offer some type of movement in the stagnated area of immigration reform in the US.  While it appears to be receiving an enthusiastic response by some, DACA raises more questions than it answers both in form and substance. 

First of all, while Obama’s administration is considering DACA to be an enforcement issue, it is questionable that the executive actually has the power to take these steps.  Homeland Security Secretary Janet Napolitano considers DACA an “exercise in prosecutorial discretion.”  However, offering Social Security numbers to undocumented individuals seems to be much more comprehensive than merely deciding not to proceed with deportation prosecution.  It has not taken opponents long to seize on this fact, criticizing the administration for everything from a presidential power-grab to election-year pandering.  In my analysis, this initiative does appear to be more of a decree than anything else.  While presidential decrees are not considered a formal part of the US system of government as they are in other parts of the region, the exercise of presidential action like this fits in with a trend.  Over the past few administrations we have seen various means for presidents to increase their law-making power such as line item vetoes or signing statements that resemble this decree method of governing.  The fact that President Obama is using the same, especially in the face of near constant filibuster in Congress, should not surprise. The question here is what does this initiative do to advance real immigration reform?  Is DACA in fact setting precedent for future reform efforts?

In essence, DACA offers a narrowly defined group of undocumented individuals the opportunity to apply for a limited right to stay in the US.  For a processing fee of around $450 people who are under 30, have arrived in the US before they were 16, have lived here continuously for 5 years and have graduated from or are enrolled in a university or have served in the military will be offered a two-year temporary stay.   This temporary status may be renewed and includes the assignment of a Social Security number, which is essential to living and working legally in the US.  However, it does not offer a path to citizenship or even permanent residence.  This raises several very important issues.

First, DACA appears on its face to be creating a new category of immigrant in the US.  That is, a legal taxpayer with no opportunity to fully engage in the rights of US residents. (It is unclear how an individual with a valid Social Security number would be excluded from rights that other permanent residents enjoy).  Political scientists and human rights activists alike should shudder at the thought of administratively establishing a non-voting taxpayer.  It is wholly inconsistent with the foundations of a country created on the maxim of “no taxation without representation.”

Second, it creates yet another temporary immigrant category.  If anything should be learned from the immigration debacle in Spain, it is that temporary immigration categories create havoc, not only for the individuals, but also the granting and enforcing institutions.  Deadlines, processing times and costs all conspire to create instability and unnecessary bureaucracy.  If the policy decision is that these people deserve to live and work in the US in 2012, there should be no reason to think, ceteris paribus, they would be undeserving in 2014.  While the political imperatives to downplay this regularization with the term “temporary” are fairly evident, it is inconsistent and simply bad policy.   

Third are some slippery slope issues (even though such arguments are a rhetorical fallacy, allow me to indulge). Does DACA set a precedent for future efforts to reform immigration law? Does this new category of disenfranchised quasi-citizen stand a chance of becoming enshrined in US law?   What happens to these people once they are registered and down the line this program is closed down? It seems a fair concern to register with a government that may, at any time, decide to pursue you for deportation.

Ultimately, DACA sends very mixed signals, both to immigrants and the US population at large.  What does it mean to legally live and work in the US?  Do we as a society feel that innocent people (DACA candidates necessarily entered the country as minors and therefore have not broken any US laws by their own volition) should be free from the consequences of actions they did not choose to undertake?  What is the future for immigration policy? Will the US continue to have an open (if onerous) immigration policy?  And finally, what will be the real impact on the people who enroll in DACA? Will this program improve their lives in the long-run?  As I mentioned at the outset, DACA raises more questions than answers and only time will tell how many of these issues shake out.