Wednesday, September 6, 2017

What's Next For DACA?

The next six months in the Congress will be crucial to get the 800,000 DREAMers a legislative solution.

I think what this country needs is a solution to the random pickings of people in political office who stop - or try to stop - national programs before there is an alternative or before making grand slams into individual civil rights, leaving only harm to groups of people in these UNITED States of America.

Let's honor our differences by respecting and protecting them.

Betsy Combier
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betsy.combier@gmail.com
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Sens. Lindsey Graham, R-S.C., and Dick Durbin, D-Ill., spoke about their Dream Act to help protect DACA recipients at a press conference on Tuesday.

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September 6, 20175:00 AM ET

With President Trump's announcement on Tuesday that his administration was ending the Deferred Action for Childhood Arrivals program (DACA), the White House made clear they want a legislative solution from Congress to protect the roughly 800,000 "DREAMers," who came to the U.S. illegally as children and now face the possibility of deportation.

There are several pending bills in Congress, spearheaded by both Republicans and Democrats, that could gain more steam now that Trump has made the decision to disband the program in six months. DACA was first implemented by President Obama in a 2012 executive after Congress failed to pass comprehensive immigration reform or a bill that would have provided protections to immigrants who came here illegally as children, through no fault of their own, and who have no criminal record.

While Congress could pass a standalone bill to just address DACA, White House press secretary Sarah Huckabee Sanders hinted in her briefing on Tuesday that Trump wanted "comprehensive reform" and dodged on whether Trump would sign a bill just addressed at DREAMers.

In a tweet later Tuesday, Trump seemed to signal he wanted broad immigration reform and didn't single out DACA specifically.

"I have a love for these people and hopefully now Congress will be able to help them and do it properly, and I can tell you, speaking to members of Congress, they want to be able to do something and do it right," Trump had told reporters just hours earlier. "And really we have no choice, we have to be able to do something, and I think it's going to work out very well, and long-term it's going to be the right solution."

He later left open a chance that he could reconsider the wind-down if legislators reach an impasse.

If Congress wants to act to help DREAMers before their protections expire, there are several bills pending that could do the job — all of which could gain steam in the wake of President Trump's decision.

But with Congress set to juggle many major tasks over the next month — including providing disaster funding for victims of Hurricane Harvey, raising the debt ceiling, passing a budget and addressing the White House's push for tax reform — it's unclear how much political capital GOP leaders can throw behind such a bill. House Speaker Paul Ryan has signaled his willingness, but Senate Majority Leader Mitch McConnell has not. And the legislative branch has not shown an ability this year to pass anything of consequence.

Here's a rundown on some of the top pending legislation:

Dream Act, sponsored by Sens. Dick Durbin, D-Ill., and Lindsey Graham, R-S.C.

The senators held a press conference Tuesday afternoon after the Trump administration's announcement, saying they're pushing for action on their latest iteration of the Dream Act by the end of September. While Durbin was highly critical of Trump's decision, Graham said he believed it was the right decision, because he thought Obama had overstepped his legal authority by issuing the far-reaching executive decision. The South Carolina Republican said he believed Congress would be pushed to act

"The reason I think it will get done now is that the leadership of the Republican Party, including the president, realizes it's good for the country economically and otherwise to give these kids the certainty they need in their lives," Graham said.

According to the National Immigration Law Center (NILC), the Dream Act has many of the same protections in place as DACA does, and also creates a path for citizenship or permanent legal resident status if applicants meet certain requirements; DACA did not provide such a path.

Qualifications for permanent status in the Dream Act include having lived in the U.S. for a certain length of time and meeting certain educational, work or military service requirements. It would take at least 13 years for those eligible to achieve citizenship.

However, the White House has already signaled they wouldn't support this bill: When Graham and Durbin proposed it in July, Trump's legislative affairs director Marc Short said, "I think that the administration has opposed the Dream Act and likely will be consistent on that."

Recognizing America's Children (RAC) Act, sponsored by Rep. Carlos Curbelo, R-Fla.

The Miami congressman's plan, which he introduced in March, also takes much of what was in DACA and codifies it, while also providing a pathway toward legal status and, eventually, citizenship.

"The bill provides immigrants that have been vetted by The Department of Homeland Security with three pathways toward legalization: higher education, service in the armed forces, or work authorization. Following a 5-year conditional status, these immigrants would be able to reapply for a 5-year permanent status," Curbelo said in a press release announcing the bill earlier this year. At the end of their permanent status — after a total of 10 years, according to the NILC — DREAMers could apply for citizenship .

"These are young people that went to school with our own children, they are working in this country, they are contributing to this country, they speak English, Curbelo saidon Tuesday on CNN's New Day. "This is the only country that many of them remember. So we should afford them — as long as they're willing to be productive members of society, which most of them are — we should afford them the opportunity to be fully recognized as Americans and to gain legal status in this country."

Curbelo represents a majority-Hispanic district that went for Democrat Hillary Clinton by 16 points over Trump last November — making Curbelo a major target in the 2018 midterms.

Hope Act, sponsored by Rep. Luis Gutierrez, D-Ill.

Gutierrez introduced this bill in July, flanked by the Congressional Hispanic Caucus; 112 Democrats already had signed on to cosponsor his legislation.

To be eligible, people must have entered the U.S. before age 18. It does not include any work, education or military requirements, but does reject people who have been convicted of certain crimes, according to the NILC.

It also provides the fastest path to citizenship. Those eligible can apply for conditional permanent residency, valid for up to eight years, and after three years can apply for lawful permanent residence status. After a total of five years, they can apply for U.S. citizenship.

"DACA is under threat, and we know that President Trump and the attorney general, if he is still in office, will not lift a finger to defend DACA," Gutierrez said back in July."This will replace the order in the lives of these young people with chaos. It will replace the hope they have for their futures with despair. It substitutes cruelty for their aspirations and the aspirations of our entire immigrant population. All of us here support DACA. We fought for DACA and we will defend DACA. And the defense includes putting on the table legislation that charts a way forward."

BRIDGE Act, sponsored by Rep. Mike Coffman, R-Colo.

As soon as news broke over the weekend that Trump was going to end DACA, Coffman announced he planned to file a discharge petition to get his bill to the House floor. The rarely-used method requires a simple majority of signatories to circumvent party leaders and bring up a bill for a vote by the full House.

The BRIDGE Act — which stands for Bar Removal of Individuals Who Dream and Grow our Economy — was proposed back in January, and essentially would codify the current DACA program into law and extend it for three years, allowing Congress more time to come up with a comprehensive, long-term solution on immigration reform.

Unlike the other bills in Congress, it does not include a path to citizenship.

"The members of Congress have a choice: They can let the program be phased out and these young people be subject to deportation, or they can sign this petition for the Bridge Act," Coffman told The Denver Channel on Monday. "The federal government knows where they are, so if there are deportation proceedings, they could be expedited."

Like Curbelo, Coffman is also facing a tough reelection campaign in 2018; he serves a district that Clinton won by 9 points.

What Is DACA

On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.

Consideration of Deferred Action for Childhood Arrivals (DACA)

DACA Has Changed!

  • We are no longer accepting initial requests for DACA, but we will adjudicate initial requests for DACA accepted by Sept. 5, 2017.
  • We will no longer approve advance parole requests associated with DACA.
  • We are only adjudicating DACA renewal requests received by Oct. 5, 2017, from current beneficiaries whose benefits will expire between Sept. 5, 2017 and March 5, 2018.
  • Read the 2017 DACA announcement
This page provides information on requesting consideration of deferred action for childhood arrivals (DACA). You may request DACA for the first time or renew your existing period of DACA if it is expiring.

Find on this Page:

Previous Rules:

Request DACA for the First Time

The following information explains the guidelines for requesting DACA for the first time. If you need further information and cannot find it in our Frequently Asked Questions, you can call our National Customer Service Center at 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing-impaired). Customer service officers are available Monday-Friday from 8 a.m. to 6 p.m. in each U.S. time zone.

Guidelines

You may request DACA if you:
  1. Were under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Had no lawful status on June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Age Guidelines

Anyone requesting DACA must have been under the age of 31 as of June 15, 2012. You must also be at least 15 years or older to request DACA, unless you are currently in removal proceedings or have a final removal or voluntary departure order, as summarized in the table below:

Tuesday, August 22, 2017

Indicting the President: President Clinton’s Justice Department Says No by Ronald Rotunda


VERDICT
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Nearly 20 years ago, Ken Starr, former solicitor general and judge, asked me to evaluate whether a federal grand jury could indict a sitting president. Starr was then the independent counsel investigating Whitewater and other scandals associated with President Clinton. He turned to me because I was former assistant majority counsel, Senate Watergate Committee, and coauthor of a [warning, shameless self-promotion] widely cited Treatise on Constitutional Law (now six volumes long, in its 5th edition).

My conclusion is (or may be) relevant again. It’s nice to know what I write is timeless. The National Archives, in response to a freedom of information request from the New York Times, has now made public most of my Opinion Letter (it kept secret two portions).

Opinion Letters, unlike briefs, are not argumentative. They should represent the lawyer’s objective evaluation and prediction of what courts are likely to do, even if clients don’t like the results.

My Letter is 56 pages long, with 164 footnotes, not because I was paid by the word but because the issue is complex. My conclusion is pithier. A federal grand jury can probably indict a sitting president for committing a serious felony, unless other rules preclude that (which is the case here—more about that shortly). There is no case directly on point, but the language of the Constitution, language in several cases, and the present Justice Department rules support my conclusion.

First, the framers knew how to write an immunity clause. For representatives and senators, there is a “privilege from arrest” in civil cases when going to and from Congress—a privilege now irrelevant because we no longer use arrest in civil cases. Also, they may not be criminally prosecuted for what they say in Congress (“for any Speech or Debate in either House”). Charles Pinckney, a signer of the Constitution, said, “No privilege of this kind [given to Congress] was intended for your Executive” because “no subject had been more abused than privilege.” Gravel v. United States(1973) said, “executive privilege has never been applied to shield executive officers from prosecution for crime.”
Some argue that criminal prosecution would distract the president and make him unable to perform his duties. The 25th Amendment answers that objection, by offering a mechanism to keep the Executive Branch running if the president is temporarily unable to discharge his powers. In this country, no one is above the law.

On the other hand, a state prosecution of the president is probably unconstitutional because of the Supremacy Clause. There may be thousands of state prosecutors, many of whom might love to secure their 15 minutes of fame by indicting a sitting president, but state prosecutors may not interfere with presidential power.

There is another caveat: the Supreme Court has reaffirmed for nearly 150 years that the president has complete, unreviewable power over federal criminal cases. As the unanimous Court said in the 1974 Watergate Case, United States v. Nixon, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case,” citing Confiscation Cases.

Nixon said the Watergate prosecutor was no ordinary federal prosecutor because the attorney general gave him “unique authority and tenure.” Admittedly, the Court said, the Department of Justice could change its regulations, but “So long as this regulation is extant it has the force of law.” The present rules of the Justice Department do not mimic those rules.

After Watergate, Congress enacted a special prosecutor statute; though it no longer exists, it applied at the time I wrote my Opinion Letter. Because a statute protected that Independent Counsel (Ken Starr) from removal, he could ask the grand jury to indict.

In contrast, the present regulatory special counsel, (Robert Mueller) does not have the tenure afforded by the unique Watergate regulations and certainly does not have any statutory tenure.

In addition, the present regulations require that Mr. Mueller must follow Justice Department rules and policies. In October 2000, during the waning days of President Clinton’s second term, the Justice Department’s Office of Legal Counsel (OLC), issued an Opinion that concluded “a sitting President is immune from indictment as well as from further criminal process.” The regulations that govern Mr. Mueller require him to follow the Department of Justice “rules and policies.” The OLC’s opinions are “controlling” on the Executive, so this regulatory independent counsel, unlike a statutory independent counsel or the Watergate regulatory counsel, cannot indict a sitting president, which is what my 1998 Opinion Letter concluded. If you don’t like that result, blame President Clinton.

Yet, it’s premature by a long shot to think about indicting the president because all we have now, frankly, is a mountain of innuendo. Some argue Trump obstructed justice when he terminated FBI Director James Comey. However, Comey’s departure didn’t obstruct any investigation. FBI agents were investigating both before and after Comey’s departure. Deputy Attorney General Rod Rosenstein was in charge of the Russian investigation both before and after Comey left. Comey seems to think he was in charge, but the Justice Department is in charge, a point that Rosenstein emphasized in his memorandum criticizing Comey.

Second, Trump’s firing Comey in May cannot be obstruction simply because three months earlier, February 14, 2017, Comey now says Trump had told him that Flynn’s “a good guy. I hope you can let this go.” Comey now claims this comment may be obstruction, but, if he really thought that, he had a legal obligation to report it last February. Title 28, § 535, of the U.S. Code clearly requires a government lawyer who uncovers evidence that a government official has violated the law to report it to the Attorney General. Comey reported nothing, which indicates that he did not think there was any obstruction at the time. Comey’s actions are inconsistent with the idea he thought there was an obstruction of justice. See also, In re Lindsey (D.C. Cir. 1998) (per curiam).

The FBI is supposed to be nonpartisan, but it is not supposed to be independent of the president. Consider, for example, if FDR had fired FBI Director J. Edgar because of his investigation of Albert Einstein, or if FDR told Hoover to stop investigating Einstein. (“Einstein’s a good guy; I hope you can let this go.”) Do we really think that FDR would be obstructing justice? Or, assume that Harry Truman ordered Hoover to stop investigating Ernest Hemingway. Again, do we really think that Truman’s order (a lot more specific than Trump’s “hope”) is a crime? If JFK told Hoover that Martin Luther King is “a good guy” and you must stop investigating him, we would not accuse JFK of obstruction for firing Hoover. Instead, we would have praised JFK.

None of these hypotheticals compare to the charges involving President Nixon, that he or his aides offered hush money or promises of executive clemency in exchange for silence.

Recall also that President Obama said repeatedly he has prosecutorial discretion: the executive branch (including the FBI) has limited resources, and the president has the power to direct those resources.

President Trump has the same power that President Obama did to direct resources.

Finally, we should be very cautious in converting policy disputes into criminal disputes. There were criminal investigations and prosecutions of Wisconsin Governor Scott Walker, Texas Governor Rick Perry, Alaska Senator Ted Stevens, and House Speaker Tom Delay, of Texas. Courts threw out all these cases, but only after much time and expense. A New York state grand jury indicted President Reagan’s labor secretary, Ray Donovan, and six others, for larceny and fraud. Donovan resigned as Labor Secretary, the state prosecutor got his 15 minutes of fame, and then the jury acquitted them all. Donovan asked, rhetorically, “Which office do I go to to get my reputation back?”

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Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.