Biden’s Move to Fortify DACA Program an Unlawful Quasi-Amnesty

As if the American people needed further evidence of the misplaced priorities of the Biden administration, there’s more.

The administration has taken yet another unjustifiable action, even as the economy continues to plummet and inflation continues to rise. 

In keeping with President Joe Biden’s previous order protecting the Deferred Action for Childhood Arrivals program, the Department of Homeland Security published its final ruleDesigned to preserve and fortify an unlawful immigration program. 

That recent action is the administration’s attempt to codify former Homeland Security Secretary Janet Napolitano’s original DACA memo of 2012 and, accordingly, almost entirely tracks with the original eligibility criteria.  

As expected, it includes an unrelated provision extending eligibility to apply for work authorization for any illegal alien who is placed in any “deferred action” posture, which basically means that the administration refuses to enforce immigration law and remove the illegal alien from the country. 

This is administrative overreach at its worst. The executive branch continues to find new ways to grant aliens in this country illegally work permits that allow them to compete for jobs with American workers during a recession.

This regulatory scheme is not similar to deferred actions, as DACA suggests.  This is an amnesty process for the targeted population.  Once basic eligibility requirements are satisfied, it’s very difficult to be denied, even for aliens with many types of criminal convictions. 

Particularly alarming is that the definition of felony has been narrowed to only encompass the statutory definition of an “aggravated felony”—a term of art with a very specific, narrow meaning in the law.  There are many other serious federal and state felony convictions that would not block access to the program, but would keep dangerous aliens out of our communities.       

The Department of Homeland Security has been a heavily constrained agency in immigration enforcement. They also ignore large portions of statutorily-enacted immigration law. 

Even though some of this behavior has been rebuked federally, this latest rulemaking is a sign that Biden is willing push the envelope in implementing his open-border policy despite not having a congressional mandate. 

The administration’s claim that its actions are due to limited enforcement resources is simply a lie, intended to fool the public.

It is not surprising that DACA has taken the rulemaking action. The administration has grown impatient and realizes that congressional action—the appropriate path for a law or policy change of this nature—is not imminent. All of the proDACA talk has ceased with congressional Democrats holding the majority since 2019.  

The left shouts that protections are necessary and is being blocked. But could it be that a national mandate to amnesty illegal aliens does not exist? Could it be that members of Congress aren’t getting the pressure from constituents (suffering economically) that could have driven action over the past few decades and broken logjams? 

No matter what the reason, Congress has never made DACA protections law. This latest rulemaking, which is unconstitutional and attempts to take control of congressional authority, makes a mockery the rule of legality.  This is clear-cut legislating via the administrative state. 

Rules are meant to explain an agency’s application of its enabling statutes. They aren’t meant to create new rights, programs, or benefits that have not been authorized or funded by Congress. 

Rulemaking without a statute as a foundation is dangerous and illegal. It is dangerous to create rules that grant quasi-legal status to illegal aliens and employment authorization benefits to thousands of them who have violated U.S. immigration laws. It sends a clear signal to the world that laws don’t matter, that flagrant violations can be made in our country, and that illegal behavior by foreigners does not have consequences 

If Congress and the courts let this rulemaking stand, an empowered administration will use it to further undermine the immigration system. A memorandum of executive intent can be used as the basis for rulemaking. As a weak Congress watches, an even wider amnesty is not far off. 

This latest irresponsible move is also ripe for rebuke through the Congressional Review Act. It allows Congress to invalidate administrative decisionmakings. Congress cannot give its authority to the executive branches based on unilateral, unconstitutional acts by a president or an administration that does not respect the rule of law and the limits of its power. 

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