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It Doesn’t Matter If DACA Is Good Policy. It’s Unconstitutional

DACA protesters

Soon the Supreme Court will decide whether Deferred Action for Childhood Arrivals, as President Barack Obama implemented through executive action, must be reinstated. Americans who care about preserving the rule of law must put aside their positions on the policy itself and pray that the court acts to preserve the processes our Constitution prescribes.

Obama announced DACA as official policy in 2012, providing a sense of legal security for children brought into the country illegally by their parents. The idea was to assure these minors, who had no say in whether they came to the United States, that they would not be suddenly deported from the only country they have ever known. In 2017, President Donald Trump ended the program, calling it an abuse of executive power.

From a constitutional perspective, it’s hard to argue with that. Obama effectively changed immigration law on his own because Congress refused to do so. As far as much of the media and left is concerned, that is a mere technical detail. It pales in comparison to the inherent justice of the DACA policy.

Talk of “justice for dreamers” is much more easily converted to clickbait than talk of constitutional authority or separation of powers. In a culture driven by images on screens, it makes sense that news producers would opt to focus on stories of hard-working Hispanic young people haunted by talk of deportation.

The alternative story — about the actual issue in this case — isn’t much of a draw for modern audiences. Conditioned, as we are, to getting our news in soundbites and tweets, how many of us would spend time on a story about one government branch usurping the constitutional power of another? What kind of images could attract our attention to such a conflict? An animated White House swallowing a sleeping Capitol dome?

So, alas, as the media focuses on whether DACA is the fairest way to handle the “dreamers,” a lonely bunch of lawyers and constitutional scholars will focus on the real issue in the case: whether a president, frustrated by the failure of Congress to pass a law, may make up the law on his own without them.

Just for the record, I sympathize with the frustration. The DACA policy is just, compassionate, and within the scope of the powers that we, the people, have delegated to Congress. Lawmakers seem to be asleep at the wheel.

But in our republic, the appeal of the policy cannot justify its enactment by executive fiat. In the American system, process is paramount. The division of specified powers among the three federal branches is the hallmark and safeguard of our constitutional government.

Over time, that mark has faded so badly as to be scarcely visible on modern government actions. As the misdirected focus in this case reveals, most Americans aren’t even looking for it anymore. Presidents and bureaucrats are filling in the blanks of vaguely written or nonexistent laws, essentially creating the laws they were meant merely to enforce.

The courts, empowered to decide “cases and controversies,” are joining in the fun. They make or remake law through creative “interpretation” to produce their personal desired outcomes. (But only when it’s really important, such as when abortion, same-sex relationships, or a leftist health-care law is at stake.)

Ironically, the sole institution vested with the authority to make law, Congress, finds it most convenient to “delegate” that power to the aforementioned bureaucrats. The national legislative branch busies itself instead with endless hearings about divisive political matters. These activities, unlike hashing out the wording of mundane laws, make for good, dramatic media coverage. This is a boon for many congressmen, who want to hold their offices in perpetuity.

Then there’s the fact that political realities require compromise when making law the old-fashioned way. And compromise can lead to an unhappy constituent base. If, instead, elected officials can push off the work of making substantive, specific policies, then they can push off the unpopular decisions that might put their careers at risk. They get what they want, while the nation’s needs go unmet.

Our carefully calibrated constitutional system is off balance, America. While drawing attention to that fact may be absurdly difficult, future generations will one day thank us if we succeed. A president who makes law — even a popular law such as DACA — is acting more like a king than a president. Americans have changed a lot since the founding, but surely not enough to embrace a monarchy.

If our passion for pictures leaves us unable to focus on critical issues without one, how about an image of Obama — or Trump — in a crown?