“Deferred Action for Childhood Arrivals (DACA)” is an executive order issued by President Obama. It directed the executive branch to indefinitely “defer” enforcement of immigration laws against those who illegally entered the United States as a minor.
Was DACA Constitutional in the first place? To answer this question fully, we must start at the beginning.
The first thing to remember is that latitude is given to the executive branch in determining how best to enforce laws. It is often the case that some laws are not completely enforceable.
Take, for instance, drug laws. There are good reasons why the federal government spends most of its resources targeting drug dealers rather than drug users. Hunting down every last drug user would be impossible given the resources available to the federal government, so concentrating enforcement on dealers makes sense. “Deferring” enforcement against users in this way is within the scope of executive discretion consistent with the Constitution.
Immigration laws are likewise impossible to fully enforce. The government does not have the resources to summarily deport millions of people. Therefore, the executive branch must use its discretion on where best to concentrate enforcement efforts.
That said, a President cannot simply refuse to enforce a law. Doing so would usurp the role of Congress as Legislature. If the President can choose not to enforce any law he dislikes, then his veto power becomes unlimited. The Constitution clearly limits the President’s power, granting Congress the ability to override a veto by a ⅔ majority. This Constitutional limit would be meaningless if the President could legally refuse enforcement.
So the Constitutionality of DACA comes down to this. Was Obama’s DACA policy a good faith attempt to enforce current immigration law? If so, then the policy is a legitimate use of his executive powers under the Constitution. Was Obama trying to reduce enforcement because he disagreed with Congressionally-enacted policy? That would be an unconstitutional abuse of executive power.
Like many conservatives, I am skeptical of Obama’s motives, especially given his own words back in 2011. However, some will argue that allocating resources away from those who unknowingly break the law (minors) toward those who knowingly break the law actually improves immigration enforcement.
It is entirely plausible that Obama believes this reasoning, and enacted DACA accordingly. So, in order to rule that DACA was entirely unconstitutional, the Supreme Court would have to impugn the motives of Obama. That will never happen. The Court would sooner agree with these people who are trying to force Trump to re-issue the legally-dubious order.
Many conservatives still think that parts of DACA would have been struck down by the court. Some are even upset at Trump for preventing this from happening. Byron York suggested in a tweet that, instead of repealing DACA, Trump should have left it in in place until a challenge rose to the Supreme Court, where he could then instruct his Attorney General not to defend it (like Obama did with DOMA). This strikes me as silly, and I am surprised the idea has been getting so much praise from the Right. Describing the idea in bullet-points is enough to debunk it:
Continue an executive policy you believe to be unconstitutional
Hope that the Court challenges you for executing the policy
Continue Obama’s problematic precedent of instructing the Attorney General not to defend policies the president disagrees with
Awful idea, pundits. If a policy is unConstitutional, the proper action is to discontinue it on those grounds, regardless of the political implications.
Is DACA a good policy, outside the issue of Constitutionality?
Given the reality of American politics, Obama did the best any Democrat could do when he crafted DACA. The American public thinks immigration levels should either decrease or stay the same. By limiting his advocacy to immigrants who never willfully broke America’s laws (giving them the appealing label “Dreamers”), and by limiting his actions to mere deferrals of deportations, Obama embarked on a pro-illegal-immigrant policy supported by a large majority of Americans. This was quite a feat of political expertise. The Republican opposition focused primarily on the fact that his policy was enacted through executive order, rather than on the policy itself.
Trump decided to make one of his first acts on immigration as President the negation of this popular policy, on legal grounds. Then he tells his Republican-controlled Congress that they have 6-months to pass a new form of DACA, and sends out signals that a Wall will need to be part of the new deal. Political heads everywhere are spinning.
Before we dive deep into Trump’s agenda, here, let’s pause to consider a few aspects of Trump’s move that seem to have been overlooked by the media:
The accusation of heartlessness is not likely to stick. Trump opposed DACA on legal grounds, but vocally supported the policy and the “Dreamers”, and is allowing it to be “phased out” and/or replaced by Congress
Trump gets to claim victory where Republicans failed in 2012 when they opposed Obama’s executive order.
Trump is giving Republicans wiggle-room to pivot away from opposition to support of a new DACA, by basing opposition on legal grounds.
Trump gets to please his base, which felt that Obama was prone to overstep his Constitutional bounds through executive order.
Trump also pleases his base by keeping the immigration issue front-and-center.
If something like DACA were to pass through Congress (either during this session or next), Trump gets to say he succeeded where Obama failed.
But there is more going on here. To make sense of what Trump is doing, we need to break American politics into five generic groups.
Establishment Democrats largely support open borders immigration policy, in part because immigrants who become citizens tend to vote Democratic. They like legal immigration. Their stance on illegal immigration ranges from vocal support to reluctant toleration (depending on how “centrist” the politician wants to look), and always includes a “path to citizenship”.
Populist Democrats (Type1) support open borders for ideological reasons that usually fit with a quasi-socialist understanding of the role of government.
Populist Democrats (Type 2) are beholden to Unions, and thus tend to oppose immigration because it lowers the value of unionized labor. Bernie Sanders used to be one of these, though he changed his tune in order to pursue the Democrat presidential nomination.
Establishment Republicans support legal immigration, in part because of their large and small business supporters like low-skilled immigrant labor. But, since most of the Republican-leaning base oppose illegal immigration and most legal immigrants vote Democrat, establishment Republican usually support guest-worker programs while promising to oppose “amnesty”.
Populist Republicans completely oppose illegal immigration and even want low-skilled legal immigration restricted.
The election of Donald Trump changed electoral calculus. He is not wed to the Republican Party or its traditional voters. His victory largely stemmed from his appeal to populist Democrats of the second type. And the immigration policy he is pursuing is continuing to appeal to his new populist coalition of voters. If Republicans don’t get on board with him, he is likely to do an end-run around them. He is already working with Democrats by passing a debt-ceiling increase tied to disaster-relief funding. He may soon do the same thing on immigration, proposing an amnesty-lite-for-minors that includes a border wall. Such a bill could pull Congressmen from both parties into an unusual coalition.
The last amnesty bill in the United States was passed with bipartisan support and Ronald Reagan’s approval in 1986. It is considered by some conservatives (myself included) to be Reagan’s second-biggest mistake, after his nomination of Sandra Day O’Connor. In the bill, Congress promised a secure border in return for the legalization of three million immigrants (“leg one” of the “three-legged stool”), but never delivered on that end of the bargain. For conservatives, this was betrayal. The biggest problem with amnesty for conservatives has always been that it encourages more illegal immigration. And it sure did. The 11+million illegal immigrants currently in this country are the legacy of Reagan’s amnesty.
If we think outside politics-as-usual, for a moment, we could realize that Donald Trump may once again be shifting the parameters of the political game. It is entirely conceivable that a coalition of moderate Republicans, Democrats, and even some conservatives could support an “immigration reform” package that basically legalizes DACA (“the right way”) and tightens security with a border wall. It could end up being one of the more popular populist initiatives in recent history.
Can you allow yourself to imagine Trump being praised by the media and Democrats? Consider this hypothetical Trump speech on the eve of the passage of a new DACA-based immigration reform bill:
“It’s finally happening, folks. It has been three decades since America has been able to move forward in a bi-partisan way on immigration. The Right distrusted the Left, fearing they would allow unchecked immigration to overwhelm us, leaving immigrants in enclaves where they speak their own language and never assimilate, as is happening all over Europe right now and causing problems. The Left likewise distrusted the Right, and saw their opposition to immigration as motivated by hatred of “the other” – even calling people who voiced valid security concerns, like those I expressed on the campaign trail, as racists. This is not a racial issue, folks. This is about what is best for America.
"But America was so polarized on this issue, and we needed a deal. A new deal on immigration. And that’s what we’ve passed, here. We’re giving priority to security concerns. We are moving to restore law and order so that we no longer have a situation where millions of people breaking our laws. And we are addressing the problem of those already here by helping people who have never deliberately broken our laws. Americans on the Right can rest assured that the Wall will be built, and America will be safe. And the Left can rest assured that, like I said on the campaign trail, the wall will have a big beautiful door where immigrants can come here: legally.”