Sunday is Constitution Day, in which we commemorate the anniversary of the signing of the United States Constitution. Two-hundred-and-thirty years after its signing, it continues to be the longest-surviving written charter of government that has ever existed. This is largely because “We the People” have stood by it uncompromisingly, in both good times and in bad. While it has been tested many times, it has survived economic depression, a Civil War, two World Wars, the industrial revolution and the rise of the global marketplace.
In recent history, it is being tested by an ever-growing executive branch.
Not wanting to recreate the authoritative monarchy they had won their freedom from, the framers carefully created three co-equal branches of government in the Constitution and gave very specific, limited powers to each branch: the legislative branch is to make the law; the executive branch to execute the law, and the judicial branch to interpret it.
This separation of powers doctrine is one of the most important aspects of the Constitution, as it clearly defined the role of each branch that is to work independently of the others. It also created our system of checks and balances so that one branch cannot gain too much power over the others.
Under the previous administration, the separation of powers doctrine was tested many times due to former President Barack Obama’s preference for issuing executive orders rather than allowing Congress to make the laws as the Constitution directs. Federal courts have repeatedly ruled that he lacked authority to implement many of his executive orders — a prime example of the Constitution’s system of checks and balances working as it should.
President Trump’s recent decision to rescind an Obama executive action known as Deferred Action of Children of Immigrants was an attempt to avoid “potentially imminent litigation” that even its supporters concede could have resulted in the courts rescinding the order. This underscores the importance of going through the proper constitutional channels when making policy changes.
DACA granted legal status to nearly a million undocumented immigrants who were brought over by their parents when they were children. Obama was right when he said publicly more than 20 times before signing the order that the executive branch did not have the authority to implement such a change in our immigration policy. A former Constitutional Law professor himself, Obama knew that such a dramatic policy change could only be authorized by the legislative branch of government.
Yet, facing a re-election campaign and unable to convince enough members of Congress to enact DACA lawfully, he acted unilaterally in 2012 to implement the sweeping new immigration policy. It was a textbook case of executive overreach.
Two years later, the Obama administration attempted to expand DACA to include, among other groups, undocumented parents of DACA recipients, known as Deferred Action for Parental Accountability. Several states filed lawsuits against DAPA, arguing it violates the Constitution and federal statutes, and a temporary injunction was granted in 2015, preventing DAPA from going into effect.
In June of this year, a number of state attorneys general wrote to Attorney General Jeff Sessions alerting him that they planned to add DACA to the DAPA litigation. In response, the Trump administration announced earlier this month that the administration would wind down DACA.
In rescinding DACA, Trump fulfilled his constitutional duty to return this significant policy decision to its rightful place: with Congress. The ball is now in our court, and I believe it is our duty to take action. By giving us six months to act, Trump has given us ample opportunity to lawfully make necessary changes to the legal status of undocumented children and prevent them from being held in judicial limbo.
They deserve the certainty that no executive action can provide, no matter how well-intended. That can only be done through codified law passed by Congress and implemented by the administration.
It’s important to remember that the current DACA debate is primarily about implementation, not policy. Polls show that nearly three-fourths of Americans believe undocumented children who live lawfully and contribute to society should be given some sort of legal status. They are upstanding residents who have earned degrees, served in the military, and contribute to society. They are the type of people we want as neighbors, friends, and colleagues. But if we are to grant them legal status, it must be done conditionally and in an orderly fashion – under the guidance of our Constitution.
It took incredible foresight from our founders to anticipate the need for a balanced system of government which limits the powers of each individual branch by clearly defining each one’s role. For the Constitution to survive more than 200 years, it has also required that every generation take on the enormous responsibility of understanding, following, and living within the Constitution’s governing principles.
President Trump’s actions, while controversial, are an attempt to resolve this wrongfully enacted policy decision. I look forward to working with my colleagues to fix it in accordance with our Constitution.
Sen. Mike Rounds, R-S.D., is the junior senator from South Dakota. He was the 31st governor of South Dakota. You can follow him on Twitter: @SenatorRounds
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