Save DACA in Congress
Trump is right to push for a legislative solution
Last week, President Donald Trump rescinded the Deferred Action for Childhood Arrivals program, an initiative created by President Barack Obama, via executive order in 2012.
DACA allowed illegal immigrants who came to this country as minors to register with the government for work permits, without fear of being deported. The program is immensely popular, according to public opinion polls, and it is a sensible reform to our immigration laws.
Nevertheless, Mr. Trump was correct to get rid of it.
This nation is a constitutional republic, which means that the “what” of public policy is not the only thing that matters. The “how” matters, too: Congress is supposed to make the law; the president enforces it; and the courts interpret it.
DACA violated this foundational principle. Though Mr. Obama claimed that he was merely exercising “prosecutorial discretion,” the broad scope of DACA meant that he had effectively usurped the legislative authority. By Mr. Obama’s logic, presidents could single-handedly rewrite all manner of tax and regulatory laws.
There was an extremely good chance that DACA would have been struck down by the Supreme Court, for precisely this reason. Last year, the court split, 4-4, on the matter. But since then, Justice Neil Gorsuch has replaced the late Justice Antonin Scalia. It is an easy bet that he would have sided with the conservative jurists who thought DACA unconstitutional. In the meantime, Attorney General Jeff Sessions would have been left defending a measure that he thinks is unconstitutional.
With Mr. Trump’s action, the matter returns to Congress, where it properly belongs.
It might seem a bit stuffy to quibble over such constitutional niceties. But the process by which our government gets things done is central to our identity as a nation. The separation of powers is a standard that came down to the Founding Fathers through centuries of hard experiences. Investing the power to make the law and enforce the law in a single branch, or especially one individual, runs the risk of tyrannical government.
It was deeply irresponsible of Mr. Obama to violate this standard in favor of DACA. In so doing, he placed those of us who cherish constitutional government in a precarious position — having to defend the system and seemingly reject the policy. This was good politics — DACA probably helped Mr. Obama with the Latino community in his re-election campaign of 2012 — but it was statesmanship. Mr. Obama could offer lofty prose in favor of checks and balances, but actions speak louder than words. Time and again, the previous president demonstrated through his deeds that he did not respect the proper role of the legislative branch, and DACA was just one example of this disregard among many.
And it is ironic now to see partisan Democrats who complain about Mr. Trump as a would-be tyrant also gnash their teeth about his decision to revoke DACA. They cannot have it both ways. By rescinding the Obama order, Mr. Trump is implicitly admitting that his office does not have such vast authority. If Democrats are so worried that Mr. Trump is trampling on the Constitution, then they should be pleased about this.
So, what happens next? Mr. Trump’s repeal of DACA is delayed by six months, to give the legislature time to do its duty and fashion an appropriate alternative. This is a prudent consideration for those who signed up for the program. No doubt the president hopes that he will be able to extract from Congress money for greater enforcement — perhaps even his much-hyped border wall. Maybe he will, but maybe he won’t. After all, congressional Democrats know DACA is popular and that most congressional Republicans support it. Democrats have an incentive to drive a hard bargain.
Either way, it is all to the better. After all, congressional squabbling is how our government is supposed to work. This is not an absolute monarchy, where some king issues royal edicts, like Mr. Obama did with DACA. It is a constitutional republic, and Mr. Trump was right to send this power back to Congress.