Napolitano Sues Trump: Dealing with DACA Termination

Trump presides as the King of Pain, inflicting turmoil and loss on others, seemingly without effort or long-term benefit.  Last week the pain came from his administration's termination of the Deferred Action for Childhood Arrivals (DACA) program this coming March.  The idea seems to be to threaten the program's 800,000 recipients with impeding job loss and deportation while the Congress that made DACA necessary by failing to pass immigration reform works again on passing immigration reform.

In "The Psychic Toll of Trump's DACA Decision," Karla Conejo Villavicencio writes,

Spreading fear and anxiety, of course, is part of the administration’s plan. Thomas Homan, the acting director of ICE, recently said: “If you’re in this country illegally and you committed a crime by entering this country, you should be uncomfortable. You should look over your shoulder, and you need to be worried.”

The renewed fear comes to a community that already leads a kind of lower-caste life bounded by suffering.

Undocumented life in America is hard on the mind and body. Poverty, precarious employment, poor access to health care, discrimination and trauma from the migration itself often lead to disorders like depression, anxiety and post-traumatic stress disorder. Access to mental health treatment is scant, the demands of simply surviving are overwhelming, the fear of being discovered discourages people from seeking care, and the stigma of mental illness has perpetuated a culture of silence that only worsens the suffering. . . . All of the immigrants I have interviewed and known throughout my life seem to accept chronic exhaustion, low self-esteem, fear and panic, low moods and fits of crying as normal for the melancholic migrant struggling to subsist without being arrested. 

DACA was intended to give limited relief to one set of undocumented US residents: those who were brought to the U.S. by their parents as minors (under age 16) before 2007. It authorises two-year renewal work permits and "defers removal proceedings."  It was implemented in 2012 with a major assist from UC president Janet Napolitano when she was Barack Obama's Secretary of Homeland Security. The program has been generally popular: in 2013, back before he ran for president, Trump met with Dreamer activists (above; photo credit: Estuardo Rodriguez).

In the wake of the announcement, Janet Napolitano has gone one step further. She and the UC Regents are suing the Department of Homeland Security to prevent it from ending DACA.  The lawsuit claims that DACA is being terminated through an "unreasoned executive whim" that violates the Due Process Clause of the Fifth Amendment and the Administrative Procedures Act.  In her op-ed explaining her decision, Napolitano writes that the Department of Justice

offers no rationale based on the merits of DACA itself, but rather on the purported illegality of a separate program with different rules and aimed at different immigrants (the parents of DACA-eligible young people), a program that never went into effect. That justification is flat out wrong. The DACA program was a legal exercise of the department’s prosecutorial discretion and no court has found DACA to be invalid. 

In fact, in 2014, the Department of Justice office that reviews the constitutionality of executive branch actions determined that DACA was lawful. Now the Trump administration’s DOJ offers no reasoned analysis for its about-face.

Like many other university heads, Napolitano had already denounced the decision to end the DACA program while affirming the continuation of DACA-related legal, financial aid and advising programs (UC's are also summarised here; UCSB's Undocumented Student Services page is here).  In addition, she had confirmed that UCOP was

Directing campus police not to contact, detain, question or arrest individuals based on suspected undocumented status, or to enter agreements to undertake joint efforts to make arrests for federal immigration law violations.

Other universities, including the Cal State system, were already declining to cooperate with immigration officials, prompting threats of retaliation from some officials (e.g. Texas).  The University of California now becomes the first to sue, with standing to sue grounded in the harm done to its 4000 DACA students.

In the meantime, DACA students, please note: "Students whose legal status expires before or on March 5 can renew their two-year DACA status if they apply before October 5."    USCIS information is here.

I'm glad Napolitano has put UC out in front on this issue.  DACA was a patch on an immigration reform process that had been broken by congressional Republicans, and the patch should stay where it is.

But there's also quite a bit of politics to get through, and then a self-made trap for universities, with which I'll conclude.

First, the politics, which have shifted in favor of DACA.  In an echo of the lawsuits against the Muslim travel ban, the attorneys general of 15 states are suing the Trump administration to block DACA's termination, "citing Trump's racial animus."   The White House was already divided on termination, as Trump himself seems to be: his varying statements include suggestions that he would sign future DACA legislation sent to him by Congress and that for the 6 month period leading up to termination, DACA people "have nothing to worry about."  Silicon Valley supports DACA, as does the business wing of the Republican Party, as does every Democratic elected official who has spoken on the matter, as do many governors, mayors, city councils, police chiefs, school district heads, church leaders, and so on. So does two-thirds of the general public.  Ending DACA is turning out to be another unpopular thing that this popularity-obsessed president has done.   He has also done it after hurricane Harvey had devastated southeast Texas and as hurricane Irma was steaming towards Florida.  He did it at the start of a nasty political autumn when he will need solid support from both parties to raise the debt ceiling among other unpleasant political tasks.  DACA back-pedaling may be commencing soon.

Why did he do it then?  The simple answer is that the unifying principle of Trump's worldview is white supremacy. (See Ta-Nehisi Coates' piece, "Our First White President" if you need convincing, or even if you don't.)  More narrowly, his clear "racial animus" made it easier for him to take DACA students hostage to exchange for Democratic support for a border wall.  This is one motive for the timing of the announcement, though too many members of both parties hate this exchange for it to work.

A second motive for Sessions and Trump is that they are losing the immigration issue in the court of public opinion. They must have assumed that white identity politics would keep the base stirred up after it had put them over the top last November.  And yet there was no groundswell to defend the Muslim ban.  There was very limited excitement on the Right--and a fair amount of embarrassed condemnation--after the white supremacist show of force in Charlottesville last month. Charlottesville's immediate effect was to grow the size of anti-Trump counterprotests to proportions that made the Trump fans hard to find.

Trump's anti-immigration stance has not actually built a coalition beyond his base of a quarter to a third of voters.  Though immigration reform politics are complicated, and racism is a steady baseline,  the overall public is not anti-immigrant.  In the most recent national poll, a majority objected to Trump's pardon of Latino-abusing former sheriff Joe Arpaio and, in addition to supporting DACA by a two to one margin, favored some "path to citizenship" for all undocumented residents by nearly three to one (71 percent).  Americans are now more likely to favor increased immigration than they were in 1986 when Ronald Reagan signed the last "path to citizenship" immigration bill.

Still worse for Trump, DACA has been doing four things to erode support for a hardline anti-immigration position.

It has rebranded young Latino immigrants as the new "model minority"--the young Americans next door.

It has appealed to the American desire to side with the innocent, which helps it to see itself as innocent.  (For example, it is easier to admit child refugees from a Honduras made more lethal by Hillary Clinton's support for the 2009 coup against elected president Manuel Zelaya than to confront destructive U.S. policies in Latin America.)

Third, DACA has shown that diverse societies work. Integration is simply more practical as well as more humane than deportation, which seems particularly oafish and stupid in relation to DACA recipients.  Everyday life has tended to cut through the economic debate about whether immigrant labor is competitive with or complementary to native-born labor. Wherever the economy is functioning well, actual practice is an interdependent non-zero sum.

Finally, DACA has been showing that government programs can solve awkward social issues and reduce specific miseries. That fact on the ground disputes the Right's overall world view.

Attorney General Jeff Sessions is a lifelong race politician, and is no doubt aware of all this.  His announcement of the DACA termination sought to broaden termination's appeal on three points.

He stated that a "lawful immigration policy that serves the national interest" prohibits an "open border policy." Second, he stressed DACA's vulnerability to "legal and constitutional challenges," saying that his review found it to be inconsistent with the Constitution's separation of powers. He said he was establishing an orderly wind-down that would give Congress time to act if it so chose.  Third, he claimed that a "lawful and constitutional immigration policy" will "further economically the lives of millions who are struggling."

Sessions thus combined a "nation of laws" defense with a reference to Trump's fabled promises to bring back American jobs.  The overall point was to affirm that DACA residents are generally good people while rejecting Obama's executive order as undermining constitutional law and hurting citizen employment.

In the coming weeks, Sessions will try to appeal to people who know they too come from immigrants, who feel badly about pulling the ladder up now, but who worry about open borders, foreign disorder, ignored lawbreaking, and the scarcity of well-paying jobs.  He will also position defenders of DACA students as lawbreakers themselves. He'll specifically go after universities as a class, saying they think they are too good to follow the same laws that apply to everybody else.   He'll build on the Right's established vision of  universities as part of a liberal elite that has let middle-class jobs disappear while asserting their own special privileges.

To stay ahead of this issue, universities are going to have to do three things--three things in addition to the basic critique of such things as Sessions' own rationales.  The economic debate (e.g. Borjas v Krugman) must continue, but it has been fought to a draw that does little to affect people's sense of their economic experience. 

The first is have a good offense, and Napolitano's lawsuit provides it. It claims that legal procedure was broken not by universities like UC but by Sessions himself.  She is also a Democrat with a  unique claim to the "nation of laws" argument: she was a central player when Obama increased border enforcement and deported more undocumented migrants than any other president in history, and this record produced protests of her UC hire by the immigrants rights community that she sides with on DACA.  It will be hard for Sessions to position the UC lawsuit as emerging from someone who's soft on illegal immigration.

Second, colleges and universities will need to do a much better job of achieving racial equality.  Higher education was meant to be part of the solution to race-based discrimination, but decades of cuts and austerity have impoverished the institutions that serve the majority of students of color, starting with community colleges.  For example, there is a clear correlation between grossly unequal funding and unequal graduation rates (see Stage 7 of The Great Mistake or Separate and Unequal for details).  The U.S. has been trying to equalize K-12 funding across school districts for decades, though the egalitarian principle is honored in the breach, and resegregation has been spreading everywhere. Higher ed needs to get serious about embarking on its own equalization project.  The educational boon would be huge.  So would the political benefits for universities: they would associate themselves with inclusive social development via an equality across aggregate populations this is efficient as well as just. 


Third, racially egalitarian development will be credible only if universities break with their implicit 1990s-era economic model that has helped underdevelop much of the country. I mean the Clinton-style knowledge economy, which was to deliver general prosperity and instead produced stagnant wages for three-quarters of the workforce while devolving whole regions at a time.  Democrat consent to low tax dogma, supported by leaders in tech and finance, has eroded the infrastructure and public services that would have held economy and society together.  At the same time, universities have made their own workforces into microcosms of the dual economy that most voters hate: faculties are divided between a shrinking tenured elite and the contingent masses who comprise about 70 percent of the instructional workforce.  Administrative bloat has not stopped the same segmentation in non-teaching staff: UCSF made national news this year by outsourcing to an offshore company exactly the kind of information technology jobs that universities are supposed to prepare their students to have.  For the general public to care about universities's views on economics and immigration, they will need to set a better example.

In any case, the fates of universities and immigrants are intertwined.  Universities only make sense as a public good grounded in tax-based public systems that support full social development; similarly, immigrant and non-immigrant labor thrive together only in a social ecology sustained by strong, equitably distributed services in health, education, housing, transportation, and employment.  The same degradation of the public sector that has damaged public universities has intensified an artificial competition between immigrant and non-immigrant labor.  Universities could do a better job of using their own scholars's research--represented by the quotations with which I began--to show the range of both market and non-market contributions that immigrants have always been making.

I realize these last two points are a reach, and require new top-level strategy.  But though the UC lawsuit for DACA is a good start, it has a much better chance of lasting success--and of leading to stability and healing--if universities publicly engage with racial capitalism and the dual economy it has created.