To begin, there is a lot to like about DACA in general. It’s goals are noble and I believe that it’s intent is good. I sincerely hope that congress does something with the time that they have to bring about a similar program as they should. There are problem with DACA however, problems that can not be ignored.
The first problem is that it was enacted through executive fiat. If we think back, we will remember that similar proposals failed to make it through congress. Our separation of powers is fairly clear that the responsibility of legislation lies with the congress. Our system of government is not designed or intended to allow the executive to decree law, even good law, simply because congress would not pass what the executive wanted. Personally I believe that congress should enact legislation similar to this in the six month window that exists. As a general rule, I do not support many of Trump’s policies, but in this case I do. This is a very unpopular decision, but I believe that it is the correct decision. For far to long the power of executive orders has grown. This is not a new thing nor is it a Democrat or a Republican thing, it is a power thing. Congress needs to take back their power and stop ceding it to the executive. Keep in mind that after the initial program was instituted by executive fiat, it was not to long before it was expanded, again by executive fiat, to do more. This is the nature of concentrated power.
The second problem is that there are significant legal questions about the program. The SCOTUS has yet to make a formal ruling on the program after a 4-4 deadlocked decision about the expansion of the program. This of course resulted in the ruling of the fifth circuit to stand. That ruling blocked some of the expanded programs, but they were not blocked on constitutional grounds. Is DACA and the expansions to it a constitutional program? The reality is that we don’t know and that many legal scholars on both side of the argument claim it is, or is not, based on their expertise. The solution to much of this is congress. Pass good immigration law and be done with it.
The third problem is related to the first and second, and really is a combination of the two. DACA has been defended largely based upon Article II section 3 of the Constitution, the relevant section quoted here: “he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.: DACA is based in Prosecutorial discretion, a practice that I favor a great deal all in all. The American Immigration Council describes it this way: ““Prosecutorial discretion” is the authority of an agency or officer to decide what charges to bring and how to pursue each case. A law-enforcement officer who declines to pursue a case against a person has favorably exercised prosecutorial discretion. The authority to exercise discretion in deciding when to prosecute and when not to prosecute based on a priority system has long been recognized as a critical part of U.S. law. The concept of prosecutorial discretion applies in civil, administrative, and criminal contexts. The Supreme Court has made it clear that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney 470 U.S. 821, 831 (1985).” Former POTUS Obama directed the agency to act one way with the DACA. Current POTUS Trump is rescinding that direction to the agency by rescinding DACA. If DACA is constitutional, then it is equally constitutional to rescind it. That is the problem with executive fiat. It is based solely in the discretion and morality of the President. We have had good presidents. We have had bad president. We will have more of both in the future. What is consistent is that the power of congress to make law supersedes this, and rightly so. If the DACA remains an executive fiat it is able to, at any time, be rescinded leaving numerous people in limbo as we see now. With congressional action, this is no longer a problem. Now, if DACA is found to not be a constitutional use of executive power, and with the current SCOTUS makeup that seems likely the case, it could end without any time for congress to act. This too would be a travesty as then we have the same situation as now, only worse. Not only are many people in a state of immigration limbo, they are in such a state with little hope of action. At the very least this way there is time for congress to act, and there seems to be a fair amount of support across the isles for this to happen.
I want to take some time with the press release that the White House put out and challenge us all to find the good in it. For the record (again), I do not particularly support President Trump’s policies, and I do not often agree with Attorney General Sessions, so this is not some sort of partisan agreement from me. On to the press release.
“Attorney General Sessions found that DACA, given pending litigation, would likely face the same outcome as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, which was enjoined by the courts.” This is, rightly or wrongly, the opinion of the chief law enforcement officer and chief lawyer of the United States. He believes the program would face the same outcome as previously had been reached. That is to say that it would be halted and likely go to the SCOTUS.
“If President Trump allowed DACA to go to court, it is likely that the court would abruptly enjoin the program. If President Trump had refused to act, many States were prepared to pursue litigation to end DACA by court order.” As noted above, the belief is that the same outcome would be reached, and now we have the reality that it was imminent that states filed cases unless something was done.
“Under the change announced today, current DACA recipients generally will not be impacted until after March 5, 2018, six months from now. That period of time gives Congress the opportunity to consider appropriate legislative solutions.” There is time for this to be remedied. That is good news indeed. If we take just a second and read what is here, and take the leap of allowing it is the actual opinion of the people involved, then this looks like the best possible scenario for all involved. Keep it out of the courts where it is likely to lose, and put it in the hands of congress where something permanent can be done. There is a lot more to the release, some of it partisan, that is worth reading and should be read, but for my purposes, the above is all that really needs to be addressed.
So, what is to be done? If you waste your time and energy criticizing Trump and Sessions for the decision, then that is less time you are spending influencing congress to do their job and write responsible and sustainable legislation. That should be the priority in this case as the ball is firmly in congresses court. There is time, but it is not infinite time. Let’s focus our resources and political pressure where it can do the most good. That is the first step, stop criticizing a decision made by the POTUS for the time being and focus on pressuring congress to write legislation. There will be plenty of time, and likely many more things, to criticize during the next election cycle.
If you support Trump and care about immigration, have a heart. These are kids we are talking about. The decisions of their parent should not be held against them even for those who are currently adults. Stop supporting the decision for the time being and pressure your congressional representatives to enact legislation similar to DACA for the benefit of us all. If you do not support Trump and care about immigration, stop criticizing the president on this issue and focus on your congressional representatives putting pressure on them to enact legislation similar to DACA for the benefit of us all. Are you noticing the theme here? I hope so, and I hope and pray that you pressure congress to do their job.