President Donald Trump has decided to rescind Barack Obama’s DACA “order-” sort of. In reality, he has deferred the deferment for six months in order to give Congress time to address the issue since that is where the policy should have been decided in the first place.
This writer is fully cognizant of the fact this issue has a “human element” as some writers have expressed here, as well as I am cognizant of the fact that every issue, especially those of a legal nature, has a “human element.” It certainly is true that many- perhaps the bulk- of these “dreamers” had no say in their immigration status having been brought into this country illegally by parents when they were quite young. For all intents and purposes, they are, culturally-speaking, “Americans,” whatever that means these days. And certainly, they- perhaps the bulk of them- are functional members of society being employed, paying taxes, or serving in the military. They are conversant in the written and spoken English language.
None of these facts, however, negate in any way that Obama’s DACA policy, instituted under the guise of “prosecutorial discretion-” a wide-ranging abuse of that phrase- being unconstitutional. Naturalization and immigration law is the exclusive purview of the Legislative branch of government under Article I, Section 8- the enumerated powers of Congress. Nothing can be more clear and concise than that.
Clearly, Obama violated the spirit and words of the Constitution in this area. Trump made it even worse. As Presidents, both are sworn to uphold the Constitution of the United States. Both have violated that oath- Obama by “enacting” a now five year “temporary fix,” and Trump by extending that “fix.”
In Obama’s case, the motivation was clear. It was predicated upon courting the Hispanic vote under the guise of some humanitarian effort, or appeal to the heart, not out of fealty to and a sworn obligation to uphold the Constitution. For Obama, it was a furtherance of a Leftist agenda in the area of immigration that will settle for no less than amnesty for all or most of the illegal immigrants currently present in the United States whether they have “dreamer” status or not. Democrats salivate at the potential for 10 million additional votes in key states.
In Trump’s case, the motivation is not clear. Here we have a President who basically operates with no set of guiding conservative principles. The only principle he works under is his image as reflected by the media. But, the result is just the same- a disregard for the Constitutional roles and powers of the branches of government. Thus, Trump’s decision to allow Congress an opportunity to address the issue is also a violation of his oath to uphold the Constitution.
The reason for making his decision now instead of later or even previous was the threat of legal action by several state attorney generals. The fear was that a decision to rule DACA unconstitutional- a very real possibility- forced his hand. That fact, if true, simply underscores my point. In effect and in an attempt to show “heart,” Trump was doing his best Andrew Jackson: “They (the courts) made their decision. Now let them enforce it” preemptively.
Subsequent comments by Trump- some less than 12 hours after Jeff Sessions left the podium- seem to indicate that Trump intends to simply allow an unconstitutional act to remain in effect despite what Congress does or does not do. This would make his action no better than that of Obama. Unfortunately- given the fact Trump is not moored to any true conservative principles (like the rule of law or respect for the Constitution), we do not really know what he means when he says he will “reconsider” the issue if Congress fails to act, or even acts in a manner not to his liking.
The objective fact is that DACA was an unconstitutional action by the Obama administration. If it was unconstitutional five years ago, it is unconstitutional today and will be 6 months from now and should have been immediately rescinded with no questions asked and no extension to give Congress the opportunity to act. Congress was given the opportunity to act when the DREAM Act was first proposed, debated and rejected. If it was such a vital policy decision, an immediate rescission would have forced Congress to act more immediately.
If Trump’s ultimate goal is to simply let DACA remain in place, that puts him in the same boat as Obama. In that case, why have enumerated powers in the Constitution? Dreamers are not under attack; the Constitution itself is what is under attack. And dreamers, but more importantly, non-dreamers are the the worse for it.