There’s a lot of hysteria going on after the Trump administration decided on a gradual phasing out of the Deferred Action for Childhood Arrivals program. The program, which was created by executive order under Barack Obama, allows illegal aliens who entered the U.S. as minors to be shielded from deportation if they meet the criteria for a deferment. If they do, they’re eligible for work and study permits. The cost of an application fee is $495, and deferments need to be renewed every two years. In short, one could argue that this is a separation of powers issue, that the executive overreached and created law by decree, and that all DACA is just a way for illegal aliens to bribe the government not to enforce immigration law. Yet, Jonathan Turley, a law professor at George Washington University, argues that all President Trump is doing is returning immigration law to Congress, which should have been done in the first place. He’s just reeling in Obama’s overreach by using the same method the former president used to enact it. There is nothing controversial about how Trump went about terminating DACA:
President Trump’s expected announcement that he is terminating the Deferred Action for Childhood Arrivals (DACA) program has met with widespread criticism over the potential cost to roughly 800,000 children of undocumented parents. While I agree with the same concern over the status of these individuals, I do not agree with the same criticism of sending DACA back to Congress. DACA was unilaterally ordered by President Obama after Congress refused to approve the program.
Some of us criticized the action as a circumvention of the legislative branch that undermined our system of the separation of powers. But because they liked the result, Democratic members yielded their institutional power to the White House and helped create an unchecked presidency. With Trump using the same authority to pursue his own policies, Democratic leaders now want to radically expand the powers of the judiciary to block an uber presidency of their own making. They have become constitutional short sellers who dump core principles as soon as they raise political costs.
New York Attorney General Eric Schneiderman and Gov. Andrew Cuomo (D-N.Y.) announced that they would challenge Trump’s decision in federal court. While they declined to give details of this extraordinary challenge, they would presumably be asking a court to say that Trump could not use the same power to rescind DACA that Obama used to create it. Since the power is the same, what remains is the merits of the policy, something courts have long avoided under the political question doctrine. They would have to say that undocumented individuals can be allowed to stay but not ordered to leave by executive order.
Trump’s decision will return this question to where it should have remained: Congress. Presidents do not have the option to go it alone in our system. Obama failed to pass DACA in Congress, and he was left with only two choices. He had to either compromise or change Congress. Sometimes when the country is politically divided, less gets done until we can reach a consensus. However, that consensus is found in the legislative process, not through presidential or judicial proclamations.
Where Obama used this authority to circumvent Congress on DACA, Trump is using it to return DACA to Congress. After failing to pass this program earlier, members may now be able to succeed by reaching a compromise with their Republican colleagues. Regardless of the outcome, however, the importance of re-establishing an equal legislative branch is paramount for our system and our future.
Oh, and the hot takes on why Obama had to circumvent Congress were also highly entertaining. In short, folks were saying that the Republicans in Congress killed immigration deals, which meant that Obama just had to act. He just had to. Yeah, remind me where in the Constitution does it say that if the president doesn’t get his way, he should just hijack the powers of the legislature? Oh, that’s right it doesn’t exist. Remember the saying that elections have consequences? Well, Obama was reminded of that in 2010, with the Tea Party wave. He decided to give the finger to the Constitution because he thought what he was doing was moral and just, as did the rest of his party. That’s not how our system works.