By Thomas Ascik
Thursday, September 07, 2017
After President Trump decided to terminate, with a
six-month delay, Barack Obama’s DACA program on Tuesday, the Washington Post wrote that it was a
“heartless decision.” As for any possible legal basis for the repeal of DACA,
the Post defended Obama by claiming
that “presidents have long exercised broad discretion over the enforcement of
immigration law and deportations.”
In its own appeal to pity, the New York Times said that DACA was “the only humane choice”
available to Obama because Congress had not acted. As to legality, the Times said that Obama, like all
presidents, had “the authority to set immigration-enforcement priorities.”
In contrast, Attorney General Jeff Sessions argued that
DACA was an “open-ended circumvention of the immigration laws,” and “an
unconstitutional exercise of authority by the Executive Branch.”
To get a third opinion about DACA’s constitutionality,
it’s useful to compare it to federal courts’ rulings on Obama’s closely related
and legally identical DAPA program.
26 States Want to
Stop DAPA and Don’t Like DACA, Either
DACA was (and remains) the 2012 unilateral decision by
Obama prohibiting DHS from deporting 1.2 million children illegally in the
country. On top of DACA, Obama’s Department of Homeland Security promulgated
his Deferred Action for Parents of Americans (DAPA) initiative in 2014, which
applied to 4.3 million illegal immigrants—the parents of the children who were
the subject of the 2012 directive.
Both rules were promulgated for the purpose of not
enforcing current immigration laws, or, in the words of the Obama
administration, as an act of “prosecutorial discretion.” DAPA made illegal
immigrants eligible for federal public benefits like social security and, in
addition, for state welfare benefits such as unemployment and for driver’s
licenses as well. In other words, DACA and DAPA together made the basic issue
of formal United States “citizenship” irrelevant.
Twenty-six states,
all citing their own increased public costs, sued in federal district court to
stop DAPA. The states were vindicated in the district court and in the appeals
court. The Obama administration appealed to the Supreme Court, and that Court,
in a 4-4 divided decision without opinion in 2016, let stand the decision of
the appeals court.
‘Unpersuasive,
Both Factually And Legally’
The appeals court had concluded that the new rule was
“not authorized by statute” and also noted that Congress had extensively
legislated in detail on this very subject but not gone as far as the Obama
administration. The court went on to say: “We expect Congress to speak clearly
if it wishes to assign to an agency decisions of vast economic and political
significance … Agency announcements to the contrary are greeted … with a
measure of skepticism.”
The district court had been more explicit. The Obama
administration had “adopted a new rule that substantially changes both the
status and employability of millions. These changes go beyond mere enforcement
or even nonenforcement of this nation’s immigration scheme. It inflicts major
costs on both the states and federal government … It is, in effect, a new law …
[It] turns its beneficiaries’ illegal status… into a legal presence. It
represents a massive change in immigration practice, and will have a
significant effect on, not only illegally-present immigrants, but also the
nation’s entire immigration scheme and the states who must bear the lion’s
share of its consequences.”
The court went on: “What is perhaps most perplexing about
the… claim that [the new rule]is merely ‘guidance’ is the President’s own
labeling of the program. In formally announcing [the program] to the nation for
the first time, President Obama stated, ‘I just took an action to change the
law.’”
The district court held that the government’s position
was “unpersuasive, both factually and legally.” If a party’s position in a
lawsuit lacks both a factual and legal basis, that party cannot even be in
court. And it was the advocacy of the federal government that the court was so
describing. All three levels of the federal judiciary reached the same
conclusion about DAPA.
Don’t Expect The
Courts to Support DACA
We now hear that some opponents want to file suit against
President Trump’s repeal of DACA. The result will be the same. They will be
humiliated in federal court in the same manner that the Obama administration
was over DAPA.
Barack Obama famously said that he would not “be waiting
for legislation” and that he had “a pen to sign executive orders.” Concerning
DAPA, the federal courts agreed with Obama’s characterization of his acts. He
had by himself enacted a “new law” of “vast economic and political
significance.”
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