What Do You Think the US Should Do about DACA?

            Barack Obama, who once bragged that he had a phone and a pen, created program known as the Deferred Action for Childhood Arrivals, otherwise known as DACA, in 2012. This program allowed authorized 700,000 illegal aliens who were brought to the United States as children to work and to deferred deportation. 


            Obama created DACA with an executive order even though he publicly admitted that he did not have authority to do so. He explained that the program was outside the jurisdiction of the executive branch because it belonged in Congress. However, he went ahead and authorized it.


            President Donald Trump used the same vehicle – an executive order –to roll back the program. Liberals immediately got upset and started to file court cases. Early in 2017 the Department of Homeland Security made the announcement that the program would be rolled back. The reason given at the time was that it “likely violated the constitutional separation of powers as well as federal immigration laws.” The roll-back was justified because courts had previously invalidated “a related program for illegal-alien parents of U.S. citizens or lawful permanent residents.”


            Today the U.S. Supreme Court heard oral arguments on three of the cases that challenged Trump’s authority to cancel the program that was supposed to be temporary and allow Congress time to act. Congress never accepted their responsibility, and Trump attempted to cancel the program by the same authority used to create it.


            Now the problem sits in the hands of the justices on the Supreme Court. They are faced with the problem of “deciding whether it’s reasonable for the president to abandon an arguably unlawful program put in place by a predecessor.”


The Trump administration argues that federal law bars review of agency enforcement decisions, such as the DACA rollback, that are “committed to agency discretion by law.” But if the decision is reviewable, the administration maintains that it was rational to abandon an unlawful program.


            Elizabeth Slattery, in an article at The Daily Signal, reports that there were some key exchanges during the oral argument. Questions introducing those exchanges are as follows.

1. Is the DACA rollback reviewable by Courts? [Does the Supreme Court have the authority to review the DACA rollback?]

2. How strong are DACA’s reliance interests? [Do DACA recipients rely on the program continuing? Do businesses rely on DACA continuing? How can anyone rely on a “temporary” program to continue?]

3. Is the handling of DACA a simple prioritization of how to handle the 11 million illegal aliens living in the United States? [DACA helps people to violate the law of the United States. Why should they have any priority status at all?]

4. What is the limiting principle for the court to consider?

5. Does the Administration believe DACA is illegal? Does it matter?

            The Administration does believe that DACA is illegal and should be rescinded because it is illegal. This may or may not be enough justification for the justices to rule for the Administration, but it makes sense to me. If a law is illegal, it should not have been implemented in the first place, and it should be rescinded as soon as possible.  If the Supreme Court rules in favor of the challengers, there will likely be more years of litigation over a temporary fix that Congress was supposed to legislate into a satisfactory and legal law. DACA is another problem that Congress continues to kick down the road.