President Trump’s latest Executive Order rescinds (over the next six months) President Obama’s Executive Order known as the Deferred Action for Childhood Arrivals or DACA. DACA provides protection from the deportation of children brought into this country illegally by their parents.
Congress now has six-months to pass legislation to replace DACA before it expires. The arguments on both sides of the debate are strewn with emotion. All of that, however, needs to be put aside. We are simply not a country that deports children who have done nothing wrong and who have contributed to our society and economy as much as anyone born here. Indeed, many have been more “model citizens” than all too many children who are citizens simply because they were lucky enough to be born within our borders. Nor, as President Obama said, will deporting any of these children increase jobs or raise wages.
There are some facts, however, that media on both sides of the debate have largely ignored. Those facts put President Trump’s decision into much needed perspective.
A United States President cannot grant legal citizenship to anyone. In the face of that reality, President Obama issued his DACA order effectuating a deferral of enforcement of existing laws. In effect, he told prosecutors to prioritize deportation and focus on illegal aliens with criminal records. And there were, and still are, more than enough illegal criminal aliens to keep authorities occupied for years. But the point is that DACA is not a right because a President cannot grant such a right. It was nothing more than an order from the President that prosecutors were to exercise their discretion and put deportation of DACA registrants on the back burner.
What media also forgets is that President Obama issued DACA because Congress failed to resolve the issue after repeated tries. So in frustration, President Obama issued two Executive Orders — DACA and the Deferred Action for Parents of Americans (DAPA). DAPA protected illegal aliens who parented children born in the United States. In doing so, President Obama circumvented the failed legislative process.
In November 2014, President Obama attempted to expand DACA. In response, Republican governors from twenty five states sued to enjoin implementation of DAPA and the expansion of DACA. In February 2015, the federal court in Texas issued a preliminary injunction enjoining implementation of DAPA and blocking the expansion of DACA. Eventually, the Supreme Court affirmed the decision in a 4-4 vote. That vote was taken before President Trump’s nomination of Justice Neil Gorsuch was confirmed.
President Obama’s original DACA order was not at risk in the case brought by the states under a procedural agreement. Instead, the parties agreed to defer it for the time being and focus only on DAPA. But the arguments cited in support of the demise of DAPA equally apply to DACA. The basis for the DAPA injunction was the court’s finding that the states had a high likelihood of prevailing on their argument that Obama’s DAPA order was unconstitutional. It’s the same legal argument used to enjoin the implementation of President Trump’s Executive Order allegedly targeting Muslim immigrants. In both instances, the court said the President most probably exceeded his authority under the Constitution. Near the end of President Obama’s term, the states also agreed to delay further proceedings until the Trump Administration had an opportunity to revisit President Obama’s order.
Their deferral, however, did not come without a threat. The states told the Administration that if by September 5, 2017, it failed to rescind the DACA order, the complaint (in the case that successfully enjoined DAPA) would be amended to challenge both the DACA and DAPA. Many constitutional experts agree that if that were to happen, DACA would most likely fall. And then we’d be left with nothing unless the judge in Texas decided to craft his own Solomon like solution. If he chose to do nothing, chaos would ensue and God only knows what would happen. So if President Trump had not acted, a Texas judge would have decided the fate of thousands of innocent children.
Thus, President Trump had a Hobson’s Choice – a choice where any decision is a bad one. So under the states’ threat, Trump bought six months for Congress to act before the states add DACA to their suit and kids potentially get deported.
Others will now file suits, too. But none of them are likely to reverse the Supreme Court decision affirming the demise of DAPA nor its precedent if applied to DACA. So the writing is on the wall.
No one can possibly want to deport a single kid who has DACA documentation. Not even President Trump. But President Obama exceeded his authority with DACA and DAPA just as much as President Trump exceeded his when he issued his immigration order targeting Muslims. We can’t have it both ways.
So now Congress must act. If it fails, President Trump says can reconsider and enter an order extending DACA. In turn, the states will amend their complaint and DACA will likely fall.
It’s a mess with plenty of blame to pass around between two presidents who chose to ignore the Constitution and a Congress that can’t do its job. And without Congressional action, the final decision may be left to a judge in Texas.
So the message is simple: Congress, do your job and stop the rhetoric. Pass legislation supporting DACA and DAPA. America is fed up with your failed leadership.