Justice Dept. Wipes ‘the Slate Clean’ on DACA for 2021

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The attorney general has junked his department’s 2017 letter declaring the illegality of President Barack Obama’s 2012 amnesty, dubbed the Deferred Arrival for Childhood Arrivals (DACA) amnesty.

The legal backtrack is useful for President Donald Trump’s reelection campaign, but it underlines the growing need for the administration to fully explain its second-term agenda for immigration, said Jessica Vaughan, policy director at the Center for Immigration Studies.

“This is a smart way to deal with the DACA issue in the short term, but no-one should delude themselves that this one move is a substitute for having a coherent immigration agenda,” she said, adding:

The president should be articulating his agenda to make sure that his coalition comes back to vote for him in November … The biggest gesture he can do right now is to go down to Tennessee and resolve the [decision by a] quasi-government agency replacing Americans with foreign workers. That would be a clear signal to voters about the kind of things he intended to do in the next term.

The justice department’s sudden retreat was revealed in a letter from Attorney General William Barr to Chad Wolf, the acting secretary of homeland security. “I wish to wipe the slate clean to make clear beyond doubt that you are free to exercise your own independent judgment in considering the full range of legal and policy issues implicated by a potential rescission or modification of DACA,” Barr’s letter said.

The one-page Barr letter was sent June 30 but was revealed July 28.

Then-Attorney General Jeff Sessions sent the original 2017 letter. He said:

DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.

President Donald Trump commented about the new policy — and perhaps sketched his second-term immigration agenda — during a July 28 press conference:

We’re going to work with a lot of people on DACA, and we’re also working on an immigration bill, a merit-based system, which is what I’ve wanted for a long time. That decision was an interesting decision because it gave the President, as a President, more power than many people thought the President had.  So the President is now, which happens to be me, in a position where I can do an immigration bill and a healthcare bill and some other bills.

Wolf, Trump’s DHS secretary, quickly used Barr’s clean-slate authority to sandblast the administration’s prior work against the DACA giveaway, and declared he is not ready to declare the DACA award of work-permits to be illegal:

By this memorandum, I am rescinding the 2017 and 2018 memoranda, and making certain immediate changes to the DACA policy to facilitate my thorough consideration of how to address DACA in light of the Supreme Court’s decision.


for present purposes … I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission. At the same time, I have concluded that fully rescinding the policy would be a significant administration decision that warrants additional careful consideration.

Wolf’s letter stepped dodged the core question of whether any President can decide to award work permits to hundreds of thousands of illegals — rather than to just a handful of protected migrants — without Congress’ approval and during a high-unemployment recession. “Under pre-existing regulations, a grant of deferred action made aliens eligible for certain other attendant benefits, such as work authorization,” Wolf said.

But  “the whole [DACA] thing was about work authorization and these other benefits,” Justice John Roberts said during the November 2019 court hearing on DACA. But Roberts’ June decision on DACA to preserve the DACA program did not provide any legal guidance about the work-permit claim.

Wolf and his agency officials downplayed the work-permit issue in the DACA process, largely because they want to preserve their claimed authority to award work permits outside of laws set by Congress.

This claimed authority, dubbed 1324a, is being used by DHS to award roughly 500,000 work permits each year to foreigners. The foreigners qualify for the “Practical Training” work permits if they pay tuition to U.S. universities in exchange for I-20 enrollment certifications.

Wolf’s letter says he will not accept new applicants to the DACA work-permit program but will renew work permits for the roughly 700,000 people still enrolled in the program.

He also said he would not allow the DACA migrants to use the “Advanced Parole” rule. The rule allows illegals to exit the country and then reenter with a semi-legal status that allows them to request green cards via the Adjustment of Status procedure.

Wolf’s letter gives little or no indication if the administration will demand a political price should Congress want to pass a DACA amnesty in 2021.

Wolf is a former lobbyist for India-based companies that provide Indian visa workers to Fortune 500 companies.

Some pro-American immigration reforms reluctantly favor a swap of amnesty to some DACA holders, in exchange for a set of new rules that would block future amnesties and reduce the incentives for illegals to enter the United in the hope of getting jobs and future amnesties.

“Like everything that come out of this administration, [the DACA policy] is a compromise between the pro-limits and the more-migration people,” said Vaughan:

They don’t have to do new applicants, and they still have the ability to cancel DACA, and Trump does not have to cancel it right before reelection. He was going to get beat up over it no matter what he did.

The truth is that everybody knows that only Congress can resolve the situation for people with DACA. But Congress won’t do it. They have a lot of other issues to deal with, and they know that DACA is not a big deal for most Americans … to shape how they vote.

If Trump had rescinded it again, they would have given [Democrats in] Congress something to beat him over he head with during the election season … The Democrats have already passed a DACA bill that was an even bigger amnesty. They think they are going to gain on Trump after the election; Why would they compromise with Trump?

The Republicans are too scared of this issue to do anything. So this a good solution for Trump.

With DACA sidelined, Trump needs to explain why voters should vote for him in November, Vaughan said:

They want to hear a real agenda outlined, centered on the labor market effect of our immigration policies, not just on individual workers, but also on the scale of immigration, especially of family migration.

How is he going to deal with all the illegal border crossers who were released into the country over the last few years? How will he enforce immigration law within the country?  People see illegal immigration in their communities. People have faith in his ability to secure the border, but they want him to enforce the law in their communities too.

Trump’s June 22 curb on visa workers is a temporary measure, she said, adding:

He needs to keep it in place until the economy recovers, and to use that time to make far bigger reforms, fundamental reforms to our employer-based programs and guest-worker programs, and also to use that time to implement the regulatory reform that he started.




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