The Fifth Circuit Court of Appeals recently found the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program to be unlawful, and the establishment media swept the story under the proverbial rug. The story of DACA and the coverage of it by news outlets speaks volumes about where our political elites are trying to take this country, and why we need to push back.
Prior to enacting DACA via a Department of Homeland Security (DHS) internal policy memo in 2012, Barack Obama initially resisted pressure from his activist base to refrain from deporting individuals brought here illegally as children. During the original national debate over DACA, in a rare moment of sanity, Obama actually sounded like the wise, nonpartisan constitutional scholar the sycophantic corporate media endlessly assured us he was.
“There are laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system,” Obama said in March 2011. “That for me to, simply through executive order, ignore those congressional mandates, would not conform with my appropriate role as president.”
It was well said, accurate and downright presidential. Unfortunately, Obama eventually caved to the pressure and ordered DHS to issue the DACA memo the following year. That move represented yet another breach of the constitutional separation of powers between the executive and legislative branches.
This massive executive overreach eventually led to litigation, and attorneys from the Immigration Reform Law Institute (IRLI) filed an amicus brief when the matter was appealed to the Fifth Circuit. In that brief, IRLI’s litigation team explained why DACA was unlawful from the start. It represents a systemic, programmatic failure to carry out the executive’s constitutional duty to take care that the nation’s laws be faithfully executed. The Supreme Court has also held that DACA is a substantive rule. That holding dooms DACA, because a court must vacate substantive rules that do not go through the notice and comment process, and it is undisputed that DACA never went through that process.
Faced with the defeat in the Fifth Circuit, the Biden Administration is now trying to salvage DACA by issuing another rule essentially duplicating the policy, and this time it went through the notice and comment process. As the Fifth Circuit held, however, DACA was contrary to law because it administratively prohibits the deportation of aliens whom the law clearly says may be removed. Absent an act of Congress, Biden’s DACA 2.0 is still on shaky legal ground.
Simply put, presidents can’t nullify immigration law through executive action. Congress, not the executive, has the constitutional power to admit aliens or legalize illegal aliens. Yet, the trend over the last few decades has been a slow, steady, and constitutionally inappropriate drift of government power from the legislative branch to the executive branch.
Why is this happening and being allowed to happen? In terms of immigration, the answer is clear. A growing number of Americans want more strict immigration policies and a recent poll found that more than half believe there is an “invasion” taking place at our southern border. With elections every two years, representatives in the House are the elected leaders in Washington most responsive to the desires of their constituents. If government authority on immigration were properly exercised by Congress, the resulting momentum could ultimately lead to a more America First, pro-enforcement federal posture on the matter.
That doesn’t sit well with permanent Washington. Its vision for America is that it should be a globalist nation of loose borders, catch-and-release policies, and nearly unlimited cheap labor to satisfy Big Business. Counting on the arduous horse-trading and sausage-making of Congress to deliver that vision is an unreliable bet.
The preference is to have anti-borders executives like Obama and Joe Biden wave their regal scepters—or in this case, pens—and dictate immigration law from the Oval Office. That isn’t the way our government is supposed to work, however. Such a system would not be a representative democracy, but a monarchy. It is the opposite of what the founders envisioned for America, and precisely what they risked their lives to escape.
The Left has spent considerable energy the last few decades trying to breach the Constitution’s firewalls in numerous areas. In this case, it is encouraging to see the system the framers’ put in place can still withstand these efforts. The Fifth Circuit’s DACA decision is a triumph for both the separation of powers and the rule of law.
Unscrupulous politicians and their benefactors will constantly look for ways to bend and shift governmental power to their advantage. America was never set up to be a monarchy, and we should resist any attempt to turn it into one.