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Will the Courts Save the Dreamers?

By       Message Marjorie Cohn       (Page 1 of 5 pages)     Permalink    (# of views)   1 comment

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The Trump administration's rescission of Deferred Action for Childhood Arrivals (DACA) has been met with widespread resistance by people across the political spectrum. Thousands have marched in the streets to save the "Dreamers" from deportation. Human rights and civil liberties organizations as well as legislators on both sides of the aisle condemned the ending of DACA.

Donald Trump's attorney general, Jeff Sessions, announced the impending termination of DACA on Sept. 5, 2017, disingenuously claiming it was necessary to forestall a looming legal challenge by 10 state attorneys general. Sessions cited no legal authority for his assertion that DACA was unconstitutional. In fact, no court has ever found DACA to be unlawful.

Lawsuits were immediately filed against Trump's cruel targeting of the "Dreamers."

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Apparently surprised at the level of opposition to his action, Trump tried to reassure the public that he might save DACA if Congress fails to act within the six-month period, tweeting:

"Congress now has 6 months to legalize DACA (something the Obama administration was unable to do). If they can't, I will revisit this issue!"

Two days later, at the urging of Minority Leader Rep. Nancy Pelosi, D-Calif., Trump issued another tweet, apparently in support of the Dreamers:

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"For all of those (DACA) that are concerned about your status during the six month period, you have nothing to worry about -- No action!"

Trump's tweet was not reassuring. In fact, it was not inconsistent with Sessions' announcement, which also said no action would be taken against the Dreamers for six months; then the axe will fall.

The White House Talking Points memo on the rescission of DACA advises, "The Department of Homeland Security urges DACA recipients to use the time remaining on their work authorizations to prepare for and arrange their departure from the United States -- including proactively seeking travel documentation -- or to apply for other immigration benefits for which they may be eligible."

Trump's "No action!" tweet indicates he is being pulled in different directions -- by his right-wing nativist base, on the one hand, and by the majority of the population who oppose his heartless act, on the other.

So, what's next? Will Congress save DACA? Will Trump reinstate it if Congress doesn't? Or does the fate of DACA rest with the courts?

Will Congress Reinstate DACA?

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Congress is now under pressure to reinstitute DACA within six months. Congressional action could take one of three forms. First, Congress might defy years of history and agree on comprehensive immigration reform.

Second, Congress could pass a stand-alone bill legalizing DACA. For example, the BRIDGE Act would enshrine DACA into law and extend it for three additional years to give Congress time to enact comprehensive immigration reform. The Dream Act of 2017 includes protections similar to DACA, but, unlike DACA and the BRIDGE Act, it would create a path for citizenship or permanent legal residency.

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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See  (more...)
 

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