If Paul Ryan really wants to save the 'Dreamers,' here's what he needs to do

  • President Trump is simply following court rulings by rescinding President Obama's DACA protections for younger illegal immigrants.
  • Now, members of both parties who support those protections will have to prove it by passing a law in Congress.
  • Better leadership and honesty from the White House and Congress is what's needed now.
Speaker of the House Paul Ryan arrives for a meeting with the House Republicans in the U.S. Capitol September 6, 2017 in Washington, DC.
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Speaker of the House Paul Ryan arrives for a meeting with the House Republicans in the U.S. Capitol September 6, 2017 in Washington, DC.

Okay America, if you want the "Dreamers," now you're going to have to prove it.

Attorney General Jeff Sessions made the announcement Tuesday morning that the Trump administration is ending President Obama's executive order that created the Deferred Action for Childhood Arrivals (DACA) that was meant to add protections from deportation for the hundreds of thousands of people who entered the United States illegally as children. Sessions clarified that the existing rules will stay in place for six months to give Congress a chance to pass new laws that would hold up in the courts. President Donald Trump later added that if Congress doesn't find a way to pass a legal version of DACA, he will look into it again:

But putting this on Congress is the key to this entire process. That pesky Constitution reminds us that it's Congress that makes the laws, not the president. In the months leading up to this decision, House Speaker Paul Ryan and more and more members of Congress on both sides of the aisle started to urge President Donald Trump to keep protections for these immigrants in place and/or make them permanent. Business leaders chimed in too, most notably Apple CEO Tim Cook. Now it's time they put their money where their mouths are.

Remember that President Obama said he executed the DACA order in 2012 because Congress refused to act on this issue with a comprehensive immigration policy. In his Rose Garden speech explaining his actions, everything sounded pretty logical and fair. The "Dreamers" are protected from deportation if they entered the United States before age 16 and continuously resided in the United States from 2007 to 2012. They have to have a clean criminal record with no felony conviction, no major misdemeanors, and no more than three petty misdemeanors. And they must have graduated from high school, or be currently enrolled in school, or have gained honorable discharge from the armed forces.

In theory and on paper, that not only sounds fair, it sounds prudent and compassionate at the same time. So what's the problem?

First off, Congress is still generally dysfunctional as the recent failure to pass an Obamacare repeal and replacement bill showed us all. No matter how great the voters might think the DACA protections are, no one can bet on this Congress passing much of anything right now.

Secondly, the realities of trying to enforce the promised basic prerequisites of the program have proven to be difficult. And there's a bit of false advertising to deal with when it comes to what the words actually mean.

The education requirements may be the clearest example of this problem. Even the very pro-immigration Migration Policy Institute notes that a large percentage of potential Dreamers will drop out of high school and other education programs. The good news is that Latino high school dropout rates have been falling lately, but they are still the ethnic group most likely to drop out according to the Pew Research Center. This is a key problem with DACA that disturbs both those who support and oppose the policy.

"Continuous residence" is another sticky part of this. To most people, that means living in the U.S. alone with the obvious exception of visits abroad, even frequent ones, as long as they are relatively short. But immigration law allows people to claim "continuous residence" even if they leave the country for multiple periods of six months. As long as you say that those long trips abroad were not part of a plan to establish a foreign residency, you're okay. That sounds more like a revolving door policy than a program set up to grant people a haven from a politically or economically hostile situation back home.

"President Trump cannot force the CEOs to face the scrutiny of the voters, but he can force pro-DACA members of Congress to put their money where their mouths are and prove just how much they favor this policy leading up to a midterm election year."

And probably most disturbingly to most Americans, the reality on the crime rules is also not as simple as many of us would think based on the wording alone. "Misdemeanor" means a minor crime in the minds of most non-politicians and criminal lawyers. But depending on the state misdemeanors can drunk driving, endangering the welfare of a child; domestic violence; and insurance, healthcare, and welfare fraud.

I'm not the first to point out all these loopholes and weaknesses in DACA. David Frum, former speechwriter to President George W. Bush and now one of President Trump's most vehement Republican critics, laid out all of these problems with DACA back in 2014. Little did he know that in making a compelling case for voter anger over the misconceptions about the law, he was basically laying the groundwork for the Trump campaign that launched a year later with his virulent response against illegal immigration as its initial salvo.

Frum was especially right when he pointed out that immigration programs like DACA, "have decisively contributed to the hardening of class divisions inside the United States." And while too many pundits have seized on real and imagined racial divisions set off or exposed by the Trump candidacy, the class-based anger in America seems more pronounced and real.

When elite leaders of both parties in Congress join with billionaire CEOs like Cook and Facebook's Mark Zuckerberg, you can see how that anger and class divisions are exacerbated. President Trump cannot force the CEOs to face the scrutiny of the voters, but he can force pro-DACA members of Congress to put their money where their mouths are and prove just how much they favor this policy leading up to a midterm election year.

President Obama wasn't willing to rely on Congress to get the protections he wanted for these immigrant children and the courts eventually found that his decision to go around the democratic process was unconstitutional. So you could table this debate for now by simply saying that President Trump has decided to follow the law and ask Congress to deal with this issue the right way.

But that's a little cowardly considering the heat illegal immigration and all immigration questions generate in America today. It would be better if the president pushed for some changes in the rules that not only would be more fair to everyone, but have a chance of being passed even in this dysfunctional Congress.

That would include keeping a lot of the protections for currently DACA-eligible immigrants in place in return for more assurances that legal immigrants and native born Americans aren't being harmed economically in the process.

To recognize that, barring DACA participants from receiving welfare and in-state tuition breaks for colleges would be a good place to start. Requiring employers like Apple and Facebook to bear some of the costs of the DACA application process and document why they hired a non-legal citizen in the first place would also at least acknowledge the concerns many have that undocumented immigrants badly harm the earning power of American citizens. These are a few of the bare minimums President Trump should demand to keep his promise to his voters and still provide America with a more workable immigration policy.

And the Democrats need to do more too. The predictable and constant response that proposed immigration restrictions are all nativist or racist in nature is wrong and counterproductive to their own party's class-based challenges. And this immigration debate is very much class-based. It's why President Trump did so well among working class voters. Democrats who continue to write off that success as the result of racism do so at their political peril. If people like House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer aren't willing to sacrifice some aspect of the welfare state in favor of more open borders and humane policies toward immigrant children, then their bluff will be called.

And it wouldn't hurt them to start talking more about jobs for working class Americans a little more. Can anyone remember the last time Democrats got as excited and angry for Americans looking for work as they are now about the children of illegal immigrants? The estimates say there are about 800,000 "Dreamers" in America today, none of whom can legally vote, while the August jobs report showed 7.1 million Americans are out of work. Do the math.

Everyone can agree that the U.S. needs a clearer and more fair immigration policy for all. And we can't have that policy until we get more honesty and courage from our politicians. Of course, looking for more truth and honesty from politicians is probably a fool's errand. At least now we have a president who is willing to adhere to the law on this particular sub-section of the immigration laws. But we still have a long way to go.

Commentary by Jake Novak, CNBC.com senior columnist. Follow him on Twitter @jakejakeny .

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.

Correction: This story was revised to correct Schumer's title to Senate minority leader.