The U.S. Supreme Court on Tuesday heard highly anticipated arguments in the lawsuit challenging President Trump’s decision to end the Deferred Action for Childhood Arrivals (DACA) program.
President Barack Obama created the program by executive action in 2012, after Congress refused to pass the Dream Act, which would have given legal status and a path to citizenship to immigrants brought to the United States illegally as children.
That this current president, according to some, is legally unable to undo by executive action what another president was able to establish by executive action speaks to the American progressive view of governance: as long as you have the right intentions, it’s fine. Constitutional norms and processes? Far less important.
That argument was on display on Tuesday when the Trump Administration relied on reasoning from former Attorney General Jeff Sessions that the current president should be allowed to unspool the program because its very establishment was itself a vast overreach of executive authority.
This is the correct take, and has been since Obama went rogue and created the program seven years ago. No president should be able to make law simply because Congress cannot come to an agreement about what to do about a particular policy. That is, in fact, the key difference between the legislative and executive branches: the former makes the law, the latter executes and enforces it. Just because the elected legislature may be unwilling to come to a solution on a vexing issue, this is not a permission slip for the president to assert his own views in its place.
Ironically, President Obama acknowledged this fact on more than one occasion. “I am president. I am not king,” he said in 2010. “I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen.”
In 2011, he again noted that he could not simply “suspend deportations” with an executive order due to “laws on the books that Congress has passed.”
Later that same year, Obama told immigration advocates that he “wish[ed] he could just bypass Congress and change the law myself. But that’s not how democracy works.”
That is, until Obama decided it could work that way.
When Congress tried and failed to come to a resolution on the Dream Act, President Obama apparently changed his mind: “I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing,” he said before spinning law out of thin air in response to congressional intransigence.
One can easily imagine the outrage from the Left if President Trump similarly responded to legislators’ failure to act on key immigration issues by choosing to make the law himself.
Disagree with his regulatory actions on immigration—and many do—but the Trump Administration has stayed within the parameters of the existing legal authority Congress slowly has been ceding to the executive branch for years.
Congress, of course, could take that power back at any time. To date, neither party has made a serious collective effort to do so.
Should DACA Stay or Go?
DACA itself was never meant to be a permanent solution. Even when enacted by the Obama Administration, DACA status was only permitted for two years at a time, and provided no path to citizenship. And neither the Obama nor Trump Administrations planned to enact mass deportations if the program was ended, something Chief Justice John Roberts acknowledged in Tuesday’s arguments.
But as to the virtues of the program itself? Its relative “success” is unclear.
To be eligible for DACA status, applicants have to show that they arrived in the United States before they turned 16 and that they are now no older than 30. They must have lived in the United States for at least the previous five years, be high school graduates or veterans, and have committed no serious crimes.
As President Obama put it, those deserving of DACA status are the “best and the brightest,” raised in America and eager to give back.
In fact, the outcome of the program have been mixed. An ongoing Harvard University study finds that 73 percent of DACA recipients surveyed live in low-income housing. Only 22 percent have earned a degree from a four-year college, and the study found that DACA recipients, after receiving their permits, were dropping out of high school at a rate almost four times higher than American citizens.
Moreover, the Department of Homeland Security reported that close to 2,000 DACA recipients have had their permit revoked due to a criminal conviction or gang affiliation. According to U.S. Citizenship and Immigration Services, nearly 60,000 DACA requesters (“requesters” include both those approved and denied DACA permits) have arrest records, including for assault and battery, rape, murder, drunk driving, and other serious offenses. Of those approved for DACA, approximately 13 percent were arrested thereafter.
This is not to say that there aren’t high achievers in the DACA pool. There certainly are, including the 300 that are in active duty in the U.S. military. But the point remains that regardless of intentions, a legally questionable program with improper vetting has led to subpar outcomes.
A Supreme Court ruling on DACA is expected in June, though it is possible that it could come sooner. Regardless of how the high court rules, the DACA program remains an insufficient solution to a deep and fundamental problem that cannot be solved with stop-gap solutions. Meaningful immigration reform is needed.
But that requires a willing Congress—a heavier lift these days, now that legislating has taken a back seat to impeachment.
Either way, the purview of our immigration law lies in Congress, not with self-appointed presidential monarchs. One hopes that the basic constitutional separation of powers survives this seeming threshold test—even in this flummoxed political moment.