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Emotional Appeals For DACA Evade The Fact That It’s Blatantly Unconstitutional


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.”