President Barack Obama created it. President Trump killed it. The courts keep reviving it.
That would be Deferred Action for Childhood Arrivals, a program to shield from deportation young undocumented immigrants brought illegally into the U.S. as minors.
DACA came about because Obama was frustrated he could not get the DREAM Act through the Senate. He was facing increasing pressure from activists and backers to abandon his efforts to build support for immigration legislation through enforcement and instead bypass Congress to provide relief to a sympathetic subset of illegal immigrants.
Memos that circulated through the Department of Homeland Security and U.S. Citizenship and Immigration Services floated ways prosecutorial discretion and parole in place could be used to keep people from being deported in the absence of congressional action. Obama was initially skeptical of these executive solutions, but by 2012 — facing a potentially thorny re-election bid — he was ready to act.
The problem is that setting up an official program modeled to some extent after a law Congress rather pointedly failed to pass and then issuing work permits to its beneficiaries goes beyond merely setting enforcement priorities. It usurps the powers of the legislative branch of the federal government.
Trump argued during the 2016 campaign that DACA was an “unconstitutional executive amnesty,” but he vacillated somewhat on whether he supported the substance of the policy keeping Dreamers from being deported. So when he announced he was rescinding DACA in September, he punted the issue to Congress by phasing the program out over six months — essentially giving lawmakers until March 5 to enact something to replace it.
Courts rendered that deadline moot. The latest ruling called Trump’s decision arbitrary and challenged his administration to justify it.
That raises an interesting question: If Trump can’t end DACA, where was Obama’s constitutional and legal authority to start it?
“The DACA program violates federal law,” White House press secretary Sarah Sanders told reporters Wednesday. “President Obama went around Congress and created the illegal DACA program. We believe the judge’s ruling is extraordinarily broad and wrong on the law.”
House Judiciary Committee Chairman Bob Goodlatte went a step further.
“For a federal judge to rule that the current administration cannot change a memo from the previous administration is absurd,” the Virginia Republican said in a statement. “The DACA program was unilaterally created by the Obama Administration in a memo penned by former Homeland Security Secretary Napolitano. Just as easily as it was issued, it can be rescinded — presidential policy is not set in stone and often changes from one administration to the next.”
Even DACA supporters initially understood it was at best a temporary fix. Why? Precisely because its lack of statutory basis, to say nothing of shaky constitutional foundations, made it vulnerable to being rescinded — either by a future administration or by the courts.
Now the program’s defenders are trying to use the courts to make sure neither happens. So far, they have had some success in doing so, frustrating Trump while also shielding him from any political consequences that could flow from ending DACA — and thus heightening its beneficiaries’ risk of deportation, even if only marginally — in an election year.
It’s almost fitting, even though constitutionally it doesn’t make much sense. Congress doesn’t like to legislate on controversial topics before facing the voters. The executive and judicial branches enjoy picking up the slack.
When it comes to DACA, Obama could rightly tell Congress: You did not build that. Now Democrats must rely on judges to keep Trump from tearing it down.
