Too clever by half. That’s the phrase the Brits use to describe someone who has an outsized estimation of their intellectual powers and is in danger of outsmarting themselves. The proponents and organizers of the Democrat lawfare scheme to keep President Trump’s Department of Homeland Security from winding down the DACA program are soon going to find that phrase describes them very well.
Contrary to popular belief the Deferred Action on Childhood Arrivals is not a law. It is not an Executive Order. It is not even a regulation. It is based solely upon a 2012 memorandum signed by Homeland Security Secretary Janet Napolitano titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.”
President Trump promised to end DACA and replace it with legislative action. In September, the administration announced that DACA had been rescinded and would be allowed to sunset in March. Earlier this year, an attempt was made to address DACA using the continuing resolution process. It was here that the Democrats showed their real agenda. They presented a plan so larded with additional categories of illegals to make legal that is was unacceptable. It was clear that the Democrats wanted the DACA issue, not a solution.
As sunset approached, two federal judges have issued nationwide injunctions against any effort to end the program. This is what may come back to bite the DACA profiteers in the ass.
DACA did not take place in a vacuum The Obama administration decided that if it could create some 800,000 news residents via DACA, that those “childhood arrivals” surely had parents that needed legalizing. So in 2014 Obama announced that parents of DACA enrollees could get some the same action via the Delayed Action on Parents of Illegals Americans program.
A coalition of 25 states sued the federal government arguing that DAPA was an illegal overreach by the administration into actually rewriting immigration law. They won an injunction and the Supreme Court (divided 4-4) refused to hear the case. And so DAPA died. In June, the Trump administration announced it was rescinding DAPA. Shortly after the administration pulled the plug on DAPA, the same coalition of states gave the Trump administration an ultimatum: fix DACA legally, or we’re going back to court. Now they have.
Opening another front in the battle over immigration policy, Texas and six other states sued the federal government on Tuesday in an attempt to end the Deferred Action for Childhood Arrivals program.
The lawsuit — joined by Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia — asserts that the Obama administration overstepped its authority when it created the DACA program, which allows individuals who were brought to the United States illegally as children to remain in the country, without congressional approval.
“The executive unilaterally conferred lawful presence and work authorization on otherwise unlawfully present aliens, and then the executive used that lawful-presence ‘dispensation’ to unilaterally confer United States citizenship,” the lawsuit says.
It calls on the United States District Court for the Southern District of Texas to “immediately rescind and cancel all DACA permits currently in existence because they are unlawful,” or at a minimum to block the government “from issuing or renewing DACA permits in the future, effectively phasing out the program within two years.”
“Three activist federal judges have blocked the federal government from canceling DACA,” Attorney General Ken Paxton of Texas, whose office filed the lawsuit, said at a news conference on Tuesday. “That means that unelected federal judges are forcing the Trump administration to leave an unlawful program in place indefinitely as legal challenges drag on.”
The outlook is grim for DACA. DACA is precisely the same program that the 5th Circuit has already held to be unconstitutional. The DAPA case was 4-4 and now there is a fifth vote (and yes, I will say “because Gorsuch” because Gorsuch). It is very unlikely that DACA is any more successful than DAPA. And the people who can thank themselves for this are those who sought to use tame and stump-broken federal judges as a way to make their own law. Too clever by half, indeed.
The big question mark is what will the Trump administration do? It wants DACA gone, just like the coalition of states. Will the US defend the program? Will it take a book from the EPA’s playbook and settle with the plaintiffs? Will a court allow a third party to defend the law? If so, will the US government remain neutral or will it side with Texas?
Of course, the biggest thing this does is give the Democrats the incentive to help produce a DACA bill that addresses a very small number of people on a one-time basis. Otherwise, their DACA issue goes away for good and not in a way they’d like.