This morning, Leah told you about a ruling from a liberal federal judge that purports to at least temporarily invalidate President Trump's move to undo his predecessor's immigration-related executive order on the Deferred Action for Childhood Arrivals (DACA) program. The judge ordered that the program remain in place for current beneficiaries while litigation challenging Trump's decision moves through the courts. The Clinton appointee cited Trump's Twitter feed to boost his conclusion that the program serves the national interest:
U.S. District Judge William Alsup in San Francisco blocked the administration’s attempt to phase out Deferred Action for Childhood Arrivals, the Obama-era program that protects young undocumented immigrants from deportation. Alsup was tasked with, among other things, determining whether it would serve the public interest to leave DACA in place while litigation over the decision to scrap the program proceeds. On this point, he had an easy answer: Trump himself had expressed support for DACA on Twitter in September, just days after Department of Homeland Security officials rescinded it. “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!” the president wrote in a Sept. 14 tweet. Another read: “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!” Those lines seemed to capture the program’s benefits in a nutshell, Alsup wrote in a 49-page order. “We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended,” the judge wrote. “For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation.”
I'm sure supporters of Alsup's order will have a chuckle over Trump's governance being undermined by his tweets, as we've seen in other cases. There was at least an argument to be made that the president's social media postings were relevant in determining the constitutionality behind the administration's travel ban; here, it's frivolous trolling. The only person who gets to decide whether DACA's continuation is in the public interest is the President of the United States. Mind you, this is not an instance of Trump creating a new unilateral policy out of whole cloth, to which there may be legitimate constitutional objections. It is an instance of the current president simply undoing an existing unilateral executive action undertaken by his predecessor. If Obama had the authority to enact DACA through the stroke of a pen, Trump clearly has the authority to rescind it using the same method. That is how executive orders work, and it's why lawsuits to thwart Trump's call in this case should be dismissed out of hand as utterly baseless. And by the way, it's not entirely clear at all that Obama actually did possess the power to extend an executive amnesty to an entire class of people the way he did. I'll let a noted legal scholar explain the constitutional hurdles involved:
“With respect to the notion that I can just suspend deportations [of immigrants brought here illegally as children] through executive order, that’s just not the case, because there are laws on the books that Congress has passed.”
That was Obama in 2011 explaining why he couldn't do precisely what he ended up doing the very next year, in an act that went beyond mere "enforcement discretion." It also involved the issuance of work permits, an affirmative act. He took his overreach a step further during his second term, expanding the amnesty-by-fiat to millions of illegal immigrants to entered the United States unlawfully as adults. The latter move was struck down by the courts. So if anything, Trump may be wiping away an illegal executive order, appropriately asking Congress to do its job to rectify a situation that most Americans see as unjust. What's striking here, though, is that the underlying proposition from which Judge Alsup proceeds is that the existing executive order was implemented legally. He's decided, entirely unjustifiably, that Obama was permitted to implement this policy as he saw fit under his executive authority -- but Trump cannot end the same policy as he sees fit, under the exact same executive authority:
So a judge begins with the proposition that an executive order is lawfully entered; executive orders by definition lie entirely in the discretion of the Executive and may be withdrawn or advanced at his sole discretion; and concluded withdrawing it may be illegal.
— (((?))) (@ThomasHCrown) January 10, 2018
The judiciary has absolutely no power to order the Executive to retain a program the Executive created ex nihilo and contrary to the express terms of a lawfully-enacted, Constitutional statute.
— (((?))) (@ThomasHCrown) January 10, 2018
Conservative writer and attorney Gabriel Malor is also scorching in his review of the ruling, pointing out that as an added bonus of hackery, the judge invoked a thoroughly discredited statistic. The DOJ and the president are right to blast the decision as outrageous and unconstitutional. As we await its near-certain overturning, the political process is underway, as it should be. We outlined some of the politics at play earlier, and here's the latest:
Politico on DACA: HOUSE MAJORITY LEADER KEVIN MCCARTHY (R-CALIF.), SEN. DICK DURBIN (D-ILL.), SENATE MAJORITY WHIP JOHN CORNYN (R-TEXAS) and HOUSE MINORITY WHIP STENY HOYER (D-MD.) will meet today with administration officials to figure out what they might be able to get done.
— Senator John Cornyn (@JohnCornyn) January 10, 2018
One more note, which comes in rant form:
...I also think it's entirely reasonable to enact a bill that will simultaneously improve border security and immigration enforcement. The border is clearly not secure, and any amnesty -- no matter how righteous -- incentivizes more illegal immigration...
— Guy Benson (@guypbenson) January 10, 2018
...feel free to *prefer* a certain course of action, but get this “insistence” on policy specifics out of here. That’s not their place, and it really rubs me the wrong way. And I’m an ally! Let’s forge a solution that protects DREAMers AND our sovereignty. End rant.
— Guy Benson (@guypbenson) January 10, 2018