Facts, Not Fear, Should Prevail in Supreme Court Case

Filed under Immigration

Marshall Fitz

The Republican presidential primary has devolved in to a nativist circus. The top two remaining candidates—Trump and Cruz—have abandoned all pretense of promoting realistic (or humane) immigration policy proposals. Instead, they are each vying for the mantle of hardest anti-immigrant hardliner.

Perhaps one of the most distressing immigration policy positions they share is their opposition to the Obama Administration’s common sense immigration executive actions: Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA).

DACA has been in effect since 2012 and has already provided more than 700,000 undocumented immigrants who were brought here as children the chance to obtain temporary protection from deportation. All the economic data indicate an overwhelmingly positive set of outcomes—these young adults are getting drivers licenses, buying cars, attending and graduating from college, earning higher wages, and helping support their families. Nonetheless, the top Republican candidates have now vowed to rescind DACA immediately if they become president. The DAPA program, however, has not yet gone into effect, and is stuck in legal limbo based on a politically motivated lawsuit that is now pending at the Supreme Court.

Several recently published studies shed new light on the profound implications of how the Court rules. These studies paint a clear portrait of the millions of American families that will be impacted by the decision as well as the high economic and fiscal stakes in the case. They also make clear why the federal government and its policies should prevail (not to mention why this primary contest for “nativist in chief” is deeply counterproductive).

U.S. v Texas: A Quick Refresher

On November 20, 2014, President Obama and Homeland Security Secretary Johnson announced a series of administrative steps to bring some coherence and rationality to immigration enforcement. Among the measures announced was DAPA, which was designed to build on the success of DACA. The DAPA program would permit undocumented parents of U.S. citizens or legal permanent residents to request a temporary reprieve from deportation and employment authorization if they have lived in the U.S. for at least five years.

To qualify for this discretionary relief, the parent would have to submit to extensive background checks and demonstrate that they are neither criminals nor security threats. The common sense rationale for this program (and the earlier DACA) was to enable DHS to prioritize enforcement against serious criminals and safety threats, while deprioritizing the separation of families and people with deep roots in the United States. Thrilled by the prospects of a life without the corrosive fear of deportation, millions of American families cheered the program’s announcement. Nativists and cynical politicians, however, decried the program as administrative amnesty and launched a series of legislative and legal broadsides at the program.

Republicans in Congress tried and failed to legislatively block the DAPA program. But Republican governors shopped for and found a sympathetic federal district judge in Texas who enjoined DAPA’s implementation. The Department of Justice immediately appealed the district judge’s politically charged, legally flawed ruling to the 5th Circuit Court of Appeals. In what can only be described as epically bad luck, two of the randomly assigned judges on the three-judge panel just happened to be two of the most conservative federal appellate judges in the country. Despite a strenuous and cogent dissent by the third judge, the panel endorsed the transparently political and patently erroneous district court ruling.

On January 19, the U.S. Supreme Court agreed to hear the federal government’s appeal of that ruling in the case, now known as U.S. v Texas. The two parties are currently briefing the merits of the case and numerous stakeholders are submitting amicus (friend of the court) briefs to provide the Court with a variety of different legal and factual perspectives on what’s at stake. In connection with those briefs, several highly respected, non-partisan research organizations have analyzed the DAPA-eligible population and their families as well as the fiscal/economic impact of the program.

DAPA-Eligible Immigrants Are Deeply Rooted in America

According to a recently released report by the Migration Policy Institute (MPI) and the Urban Institute (Urban), approximately 3.6 million undocumented parents of U.S. citizens and legal permanent residents would be eligible for DAPA.

But the direct impact would extend much further still, as they estimate that more than 10 million people live in families in which at least one person would be DAPA-eligible. This has significant bearing on the health of our nation’s youth and future. As the MPI/Urban report authors highlight: “A strong body of evidence demonstrates that growing up with unauthorized immigrant parents harms the well-being and development of children due to increased family stress, fear of deportation, poor work conditions, reduced income, inferior housing, and reluctance to access community supports for children. DAPA could alleviate some of these harms.”

Not only do these DAPA-eligible parents live in American families with millions of U.S. citizen children, they have also lived in this country for lengthy periods. By definition, they must have resided in the U.S. for at least five years to be eligible for the program—but nearly 70% have lived here for more than 10 years and 25% have lived here for at least 20 years.

A report from the USC Center for the Study of Immigrant Integration determined that in California alone, there are approximately one million DAPA-eligible residents. Of the DAPA-eligible Californians, around 75% have resided in the U.S. for more than a decade. And, given the well-settled undocumented population in California, nearly half of the state’s undocumented population would be eligible for deferred action under either DAPA or DACA.

These families have deep roots in communities across America. Enabling them to live without the constant fear of being torn apart will create more economic and emotional stability in the household, lead to better educational outcomes for the children, and provide opportunities for them to contribute more fully throughout their communities.

DAPA Would Lift Children Out of Poverty, Grow the Economy, and Increase Tax Revenues

The lawsuit filed by Texas and joined by other states was premised on the claim that DAPA would harm the state because DAPA recipients would be able to apply for driver’s licenses, which are, in Texas, partly subsidized by the state’s taxpayers. Setting aside the strong legal arguments against this flimsy and attenuated basis for the lawsuit (and the Pandora’s box it would open to politically motivated legal challenges against every federal administrative policy), the facts show that DAPA would have significant positive economic and fiscal impacts for the states.

For starters, the MPI and Urban report show that DAPA families would see an income gain of approximately 10 percent if the parents obtained work authorization. DAPA-eligible individuals and their families earn less annually than similarly situated legal permanent residents because their undocumented status reduces their job mobility and makes them more exploitable. Work authorization would enable them to move in to change jobs, maximize their full range of skills, and obtain additional education and training that would lead to an increase in their incomes.

These income gains would lift many of these families above the poverty line. Equally important, deferring the deportation of these parents will help protect their families from significant economic harm. As the MPI/Urban report concludes: “If the father were deported, the average DAPA family would go from near-poor (with an income at about 135 percent of the federal poverty level) to deep poverty (with an income at about 50 percent of that level).” In other words, simply by deferring the deportation of these parents will protect millions of U.S. citizen children from descending in to deep poverty.

Contrary to the specter raised in many extreme right-wing corners that DAPA recipients will take jobs from the native born, these programs would not impact labor force participation. As the MPI/Urban study shows, DAPA eligible men are considerably more likely (95% v. 86%) to be in the labor force than their legal permanent resident counterparts. They just earn less because of their marginalization from the formal economy.

Significantly, the benefits of enhanced workforce mobility and productivity do not only affect DAPA recipients and their families; the positive economic outcomes actually ripple throughout the economy. Because these families are also consumers, they will spend the additional money on food, clothes, housing, transportation, etc. That means more demand in the economy, which leads to income growth and job creation for all Americans. One study from the Center for American Progress pegs the increase in cumulative GDP over a 10-year period from DACA and DAPA at $230 billion.

That, of course, is just a fraction of the economic growth that would flow from a legislative solution that authorized most undocumented immigrants to earn legal status and citizenship over five years. According to the Center for American Progress, such a program would produce a cumulative increase in GDP of more than $1 trillion. Contrast that with the massive hole in the economy—estimated by the conservative American Action Forum to be $1.6 trillion over 10 years—that would result from driving 11 million people (not to mention many of their family members) out of the country. In this fact-free campaign, the mass deportation nightmare that Trump are Cruz have endorsed ignores both the costs and feasibility of such a plan. The American Action Forum estimates that the hard costs of actually identifying, detaining and deporting the undocumented population ranges from $400–600 billion.

What’s more, even though undocumented workers are economically marginalized, they still pay significant amounts of state and local taxes. The Institute on Taxation and Economic Policy reports that in 2013, undocumented immigrants paid $11.6 billion in state and local taxes ($~1.6 billion in California alone), or an average of 8% of their annual income. By contrast, the wealthiest Americans (the top 1%) only pay about 5.4% of their income to state and local taxes.

And if the administration’s deferred action initiatives were fully implemented, annual state and local revenues would increase by more than $805 million. In Texas, the lead plaintiff in the lawsuit blocking DAPA, the increase in state revenue from full implementation would be nearly $59 million.

A strong nation begins with strong families and communities. Congress’s failure to overhaul the nation’s outdated immigration laws has destabilized and weakened communities across the country. With DACA and DAPA, the Obama administration has taken important steps to strengthen millions of families who are poised to contribute more robustly to the economic and social fabric of our nation.

As a matter of law and policy, the Supreme Court’s decision in this case should be easy: reject the politically motivated legal challenge and unfreeze DAPA to strengthen our country. But as voters, we also have a decision to make—embrace immigration policies that ensure a gateway to dynamism and economic vitality, or cling to backward looking policies that stir the cauldron of anger and fear, while ensuring prolonged economic stagnation for us all. If we embrace our national heritage and core values, that too should be an easy choice.

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