DACA — Good Ends with Bad Means. DACA is Good Policy but The Supreme…
By: Thaddeus R. Winker
Tags: Supreme Court, Constitution, DACA, Legislation

DACA — Good Ends with Bad Means

Originally posted on November 20, 2019

On Tuesday, November 12, 2019, the Supreme Court heard oral arguments for Department of Homeland Security v. Regents of the University of California. This is probably the most controversial case on the docket this term since it covers the legitimacy of Deferred Action for Childhood Arrivals (DACA).

In case you have been living under a very heavy rock, DACA is an executive memorandum issued by President Barack Obama in 2012. The main goal of DACA was to protect immigrants who were brought here illegally as children from deportation. DACA was issued after Congress failed to pass the DREAM Act.

When DACA was first issued, Republicans in the House immediately condemned it as executive overreach and tried to defund the program a year later. In 2014, President Obama tried to expand the program, but several states sued and prevented the expansion. The Supreme Court affirmed 4–4 the injunction after the death of Justice Antonin Scalia. Several cases against DACA were thrown out on procedural and technical grounds. Still, in at least one case, the judge reasoned against the program's constitutionality while also dismissing the specifics of that case.

In fulfilling one of his many campaign promises, President Donald Trump took steps to end the DACA program early on in his presidency. In September of 2017, then-Attorney General Jeff Sessions announced that the DACA program was ending. As part of the program's rollback, the President told Congress to pass the DREAM Act or some alternative to codify DACA and begin real immigration reform.

At times, it looked like a compromise would be reached, and real reform and relief for DACA recipients would materialize. But, par for the course, the President repeatedly shot himself in the foot via Twitter and disrupted the whole process. There were several alternative bills and amendments presented, and each one failed mostly along partisan lines.

Both Republicans and Democrats share the blame for this failure. Republicans were so concerned about getting a verbal commitment from Trump, and Democrats were so fixated on depriving Trump of a victory, that both groups missed their chance to accomplish something bipartisan and truly meaningful before the midterms.

Ultimately, DACA is a good policy, and the DREAM Act was an even better piece of legislation. Providing a pathway to citizenship for people brought here as children is a good thing, and we should support it. The word “amnesty” should not be anathema to conservatives, especially those who hold Judeo-Christian religious values. A regular command in the Hebrew Scriptures is to welcome immigrants and the importance of hospitality.

However, DACA was legislating with “a pen and a phone” and should be ended. The Supreme Court should vote to end DACA because executive fiat, even when the goal is noble, is unconstitutional and should not be encouraged.

There is no good argument for DACA as a legal use of Executive power that doesn’t involve some sort of logical gymnastics or partisan hackery. The question before the Supreme Court is whether a President has the authority to enact immigration policy unilaterally or not. If he doesn’t, DACA was illegal to begin with, and Trump rescinding it is appropriate. If the President does have the authority, Trump can undo what Obama did through executive order.

The arguments before the court debated whether the President gave his real reasons for ending the program, which would violate the Administrative Procedures Act (APA). This boils down to “Orange Man Bad” and “Trump did this because he is racist.”

This was the tactic used to prevent the citizenship question on the census, and it worked because there was actual evidence supporting that argument. The justification given for adding the citizenship question was related to enforcing the Voting Rights Act, but even the Department of Justice said it wasn’t needed, and this was a violation of the APA.

However, many people agree that DACA is an unconstitutional example of executive overreach. Although the Trump administration has taken a harder stance on immigration and President Trump has engaged in less than civil rhetoric in regards to immigrants, the official policy of the administration has been enforcing the law, and DACA was a deference of enforcement of the law (hence the name “Deferred Action”).

If the President does not have the authority to unilaterally alter immigration policy in any significant way (Narrator: he or she does not), then ending DACA and calling on Congress to act is the only constitutionally appropriate response.

Legislation should originate in the legislative body. Congress’ failures should not be remedied by Presidential overreach. Maybe if Congress could get their act together and show Americans that they can still get meaningful things done, then their approval rating will improve from dismal to merely pathetic.

Solving immigration dilemmas through legislation is also a morally appropriate response. It would be far better in the long term for all immigrants if Congress hunkered down and actually hashed out meaningful, lasting, and compassionate immigration reform that can become law.

We should support the goals of DACA and work for real, lasting immigration reform. Compromise does not need to be a dirty word, and the perfect should not be the enemy of the good.

*Note: On June 18, 2020, the Supreme Court ruled (5–4) that the Trump Administration’s rescission of DACA was not appropriately done according to the APA.