A general amnesty—or even the threat of one—could do right by the Dreamers and maybe force a legislative compromise.
by Linda Chavez | The Bulwark | JAN. 4, 2022 | Photo credit: Sandy Huffaker - Getty Images
For Dreamers, 2021 was the year that promised some permanent relief from their fragile immigration status—but failed to deliver. President Biden can ensure 2022 is different.
Candidate Joe Biden promised in his final debate with Donald Trump in October 2020 that if he was elected president, Dreamers, those brought to the U.S. without permission by their parents when they were children, would be “immediately certified again to be able to stay in this country and be put on a path to citizenship.” But President Biden has not been able to deliver on that promise, and it is unclear that he ever will. As a result, Dreamers are in the most precarious position they have experienced since the Deferred Action for Childhood Arrivals program was initiated in 2012.
Much of the fault lies with Congress, which is the only body that can enact permanent protection and grant access to citizenship to the approximately 1.1 million eligible young people who came here illegally prior to 2012. But the administration is not blameless either. Democrats control both houses of Congress and the presidency—as they did from 2009-2011—but immigration reform has not proven a high enough priority for them to use the capital it would take to pass relief for Dreamers.
Don’t get me wrong, Republicans are the biggest stumbling block. But Democrats haven’t figured out how to use their leverage effectively, nor have they been willing to strike a compromise that might win over some GOP votes. Instead, Democrats gambled that they could attach a much broader immigration package to the Build Back Better bill, then pass the whole thing under the reconciliation process requiring a simple majority in both houses. But there were obvious problems to that approach. The Senate parliamentarian has ruled three times—most recently on December 16—that attaching the broad proposal to the Senate’s version of BBB doesn’t pass muster.
Meanwhile, the clock is ticking on a judicial ruling that could strip current recipients of their protected status and subject them to deportation. In July 2021, Judge Andrew Hanen of the Southern District of Texas ruled in a case brought by the state of Texas against the Department of Homeland Security that the initial memorandum establishing DACA violated the Administrative Procedure Act and was therefore void. While Judge Hanen stayed his decision for current DACA recipients while DHS appealed, the nullification of DACA now hangs like a sword of Damocles over the 825,000 current Dreamers and prevents DHS from processing new applications. DHS has filed an appealwith the Fifth Circuit, one of the most conservative circuits in the nation, and has moved to try to satisfy Hanen’s objections by proposing formal regulations consistent with the APA, but the outcome of both is uncertain.
The best permanent solution is changing the law, but that has proved impossible so far. Dreamers are only a small fraction of the approximately 11 million people living in the U.S. without permanent legal status. Reform advocates—including me—have argued that the system must be overhauled top-to-bottom to better suit our current and future needs for immigrants as well as provide legal status to people who have lived in, worked in, paid taxes in, and contributed to our communities despite having overstayed their legal visas or entered without authorization more than a decade ago. But the perfect cannot be the enemy of the good, and at this moment comprehensive immigration reform is unlikely, especially as we enter an election year. So why not do what we can to protect a small but significant population that has grown up and been schooled in the U.S. and are Americans in everything but legal status? Dreamers are members of our armed forces; they are studying to be or already practicing doctors, nurses, scientists, engineers, and teachers; they work at essential jobs across the labor force. With labor shortages threatening our economic recovery, what sense does it make to jeopardize losing these valuable workers?
For almost two decades, Congress has been stymied in passing any meaningful immigration reform. The fight has been twofold: What should we do about people currently in the country without permanent status, and what are the country’s needs for immigrants going forward? Tying the two together has doomed solutions for both. In 1986, President Reagan signed legislation granting amnesty for a population of 3 million illegal immigrants then present, but his support for amnesty was long-standing. “I believe in the idea of amnesty for those who have put down roots and lived here, even though sometime back they may have entered illegally,” he said in a debate with Walter Mondale before the 1984 election. If we can’t solve all our immigration problems, at least President Biden could tackle one.
President Biden should strongly consider issuing an amnesty for Dreamers now. Yes, it would be controversial, and Republicans would howl, but if he crafted both the order and his message carefully and applied conditions—essentially the same conditions in DACA—he’d have the support of the majority of Americans. Polls show that 72 percent of likely voters support granting legal status to Dreamers. It wouldn’t be the first time that a president issued a broad amnesty that was controversial. President Ford granted amnesty to draft evaders and even some deserters from the Vietnam War in 1974 provided they completed two years of public service. In his first day in office, President Jimmy Carter expanded the amnesty to include draft dodgers that had fled to other countries. If Americans could accept amnesty for those who had refused to serve our nation in a time of war, how could they not support granting amnesty to the Dreamers in uniform now, along with the thousands of others who serve their communities in other capacities?
Under certain circumstances, the credible threat of an amnesty might be enough to force a compromise in on Capitol Hill. President Biden should issue a challenge to Congress: Fix our broken immigration system now, or a Dreamers’ amnesty will be just the first I will issue. The president’s pardon power is limited, but pardoning individuals who have broken federal laws is exactly the authority the Constitution grants. What better use to put it than to give legal status to 1.1 million young people who came here as children, averaging about 6 years old, more than a decade ago?
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Linda Chavez is a senior fellow at the National Immigration Forum and served in the Reagan White House as director of public liaison. Her views are her own and do not reflect those of the CMSC.
