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President Donald Trump holds up a signed Executive Order on hiring American workers, during a meeting with U.S. tech workers, in the Cabinet Room of the White House, Monday, Aug. 3, 2020, in Washington. (AP Photo/Alex Brandon)

 

In June 15, 2012, Barrack Obama issued an Executive Memorandum announcing the creation of a Department of Homeland Security program titled the Deferred Action for Childhood Arrivals (DACA).  The policy was  established by a memorandum from the Secretary of Homeland Security titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”. This policy allowed certain illegal aliens to escape deportation and obtain work permits for a period of two years—renewable upon good behavior.  The program was created after a failure to get a comprehensive immigration reform bill passed by Congress to address the problem of illegal aliens who had been brought into the United States by their parents when they were children.

It is undisputed that the terms of the DHS program conflicted with valid United States immigration law passed by Congress and signed by a President.  For one thing, it provided that persons who “qualified” under the terms of the program created by Executive Order could obtain work permits when by law they were not eligible to be lawfully employed.  Other provisions of DACA were also in conflict with existing federal immigration law.

In June 2017 the Trump Administration announced that it was reviewing the DACA program, suggesting that it would be canceled.  But the Administration delayed for six months while the Democrat controlled House and Republican-controlled Senate attempted to negotiate a comprehensive immigration reform to address DACA and other issues involving federal immigration law.  Ultimately no agreement could be had, and in March 2018 the Trump administration began the process to terminate the program.  Three separate lawsuits were filed challenging the Administration’s actions under the Administrative Procedures Act.  All three courts granted preliminary injunctions against the proposed termination finding the Administration had not strictly complied with the APA’s procedural requirements.

So, a federal program that was created by Executive fiat, in conflict with established federal immigration law, and which was not itself enacted in conformance with the procedural requirements of the APA, could not be canceled by the next Presidential Administration due to a failure to precisely follow the APA.  A program that had no lawful basis for its legitimacy, would be protected from termination on the basis that such an action was “arbitrary and capricious”.

Turn the page now to the negotiations between the House and Senate over extending benefits to middle and low-income Americans as part of existing COVID-19 relief measures already adopted.  No agreement can be reached because the Democrats, sensing this is a “must-pass” measure, decide to hold passage “hostage” with a wish-list of election-related demands like allowing mail-in voting nationwide, allowing “vote-harvesting” nationwide, and additional money to the Postal Service to meet the demands anticipated by states that want all mail-in balloting.  With the Postal Service currently struggling to meet normal delivery demand, there is great uncertainty about the degree the Postal Service will be able to accommodate tens or hundreds of millions of ballots being mailed out and returned in a relatively short window of time.

Pres. Trump refused to give in to the extortion, and with all talks seeming to have collapsed Friday, he signed four Executive Orders on Saturday to deal with four specific problems.

  1. He suspended IRS collection of payroll taxes on workers earning less than $100,000 a year.
  2. He suspended the collection of payments on Student Loans.
  3. He imposed a federal nationwide moratorium on evictions by landlords.
  4. He extended unemployment benefits, including a supplemental amount of $400 per month (down from $600 previously passed by Congress).

The outrage expressed by Democrats today over Pres. Trump’s unilateral action is simply delicious since Trump had warned when the Democrats opposed the termination of DACA that fighting to keep the clearly unconstitutional program in place gave too much power to the Executive Branch.  He proved that point yesterday with his action.

No one among the Democrats in Congress objected to Pres. Obama executing an end-run around GOP Congressional opposition to comprehensive immigration reform by imposing DACA via Executive Order.   That was election-year politics, with Obama creating the program to the delight of Hispanic Americans, only 6 months before his 2012 re-election contest with Mitt Romney.

Now, only 3 months before the 2020 election, Pres. Trump is faced with economic hardship connected to continuing economic issues involving COVID-19, and the Democrats in Congress are happy to block a relief package based on the idea that not getting the relief would hurt Pres. Trump’s re-election chances.

So Trump did what Obama did, only with an added degree of cunning.  Not only did he sign 4 Executive Orders that have little or no political downside, he now has the Democrats in Congress in a position to having to advocate for eliminating relief to the unemployed, students, and workers — and maybe even compelling them to go to court in an effort to block the relief from getting to those who need it.

Are these bold unilateral steps Pres. Trump has taken, possibly infringing on the authority of Congress to pass tax & spending measures?

Maybe.

I think the Democrats should go to court to find out.