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  • Writer's pictureMario Nicolais

DACA put in peril — by two administrations

More than 750,00 undocumented immigrants anxiously await Jan. 20. Protected since 2012 by the Deferred Action for Childhood Arrivals policy implemented by President Barack Obama, their legal status rests upon the flimsiest of foundations: an executive order. When Donald Trump takes the presidential oath of office, their status in our country could be up in the air.

Due to the history and implementation path of DACA, it is disparate from the other big ticket issues set to face the incoming administration.

For example, the Affordable Care Act — ACA or Obamacare, depending on your particular political bent — is a creature of statute. Congress enacted and passed the law before President Obama signed it. Consequently, repeal or replacement requires another act of Congress. With Republicans holding majorities in both the U.S. House and U.S. Senate, there is a real possibility of such action. But it won’t come without moving through the long, arduous legislative process.

Within the scope immigration, President-elect Trump’s border security measures pose significant challenges revocation of DACA doesn’t. Congressional debate over what the “wall” will look like, whether an actual wall the length of the southern border or interspersed fencing, may be the least troublesome aspect. The bigger question will be who pays? Mexican officials publicly scoff at Trump’s suggestion that Mexico pay and, while Republicans control both chambers of Congress, the deficit hawks in the party may block U.S. funding.

These issues bring us back to DACA and the peril presented to its beneficiaries. Repeal of DACA does not require a Congressional action. Unlike a border wall, funding is not an issue; while DACA is primarily funded by its own application fees, halting the program certainly would not add to spending. To the contrary, Trump could point to the funding bills previously passed by a Democratic House majority as a “cut” to proposed spending.

If Trump finds roadblocks to his agenda frustrating, DACA may prove too tempting a target to pass up. If he struggles to follow through on other campaign promises that swept him to office, his political base may quickly turn restless. After all, they elected an outsider to get things done. In such circumstances, repealing DACA may provide the perfect shiny bauble to distract his most adamant anti-immigrant supporters.

Of course, if DACA falls, the incoming administration should not be the only one to take the blame. The inefficacy of Obama’s administration implementing protection for undocumented immigrants should also be highlighted. During his first term in office, he sidestepped the issue.

Congress debated the Development, Relief, and Education for Alien Minors Act every year from 2009 through 2011. The structural blueprint for DACA, the DREAM Act would have cemented the provisions in statute. Obama voiced support, but as many advocacy groups noted, did not make it a priority. Instead, he focused on other issues. Most notably, he used Democratic control of the U.S. House and U.S. Senate during his first two years to pass the ACA. When the DREAM Act came front and center of the national debate, too much time had already slipped past. With only weeks until the 2010 election, opponents in the U.S. Senate did not have to filibuster long to defeat the bill. When a new Republican majority swept into the chamber riding a Tea Party tide, the DREAM Act washed out to sea.

Eighteen months later, with no path through Congress, Obama implemented much of it through executive order. Immigration advocates cheered the step, but knew to be leery of the lasting result. That concern elevated when a 4-4 Supreme Court decision earlier this year effectively stopped President Obama from expanding DACA to family members. It skyrocketed with Donald Trump beat Hillary Clinton.

In Colorado, tens of thousands of people, both current applicants and those eligible, must now share in that apprehension.

Mario Nicolais is a constitutional scholar and advocate, managing partner of KBN Law firm, and general counsel for Vivage Senior Living healthcare organization. Follow him on Twitter @MarioNicolaiEsq

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