What started as a textbook example of executive lawmaking by fiat that turned into a textbook case of results-oriented judicial rulings is now headed to the Supreme Court.
Of course, I’m talking about the Deferred Action for Childhood Arrivals, or DACA, program.
The executive lawmaking by fiat took place in 2012 when President Obama basically gave the finger to Congress and announced that he was going to contravene black letter law and exempted some illegal aliens from being eligible for deportation.
The method he used for this was not an Executive Order or the APA rule-making process, it was established by a memo former DHS Secretary Janet Napolitano sent out to her field staff directing them to not deport illegal aliens who allege that they were brought to the US as children. That’s it. That was the depth of the analysis and consultation. A. Memo. A similar program, Deferred Action for Parents of Americans, was ruled unconstitutional by a federal appeals court which should have been a hint that it wasn’t on the up-and-up. But when Jeff Sessions got around to pulling the plug on DACA, lawfare ensued and the administration was told it could not rescind the Napolitano memo.
Just stop for a moment and consider this. Federal courts literally told the Trump administration that they could not rescind a memo written five years and three Homeland Security secretaries earlier. Logically, this means a cabinet secretary’s memo is more powerful than an actual law because it takes no consensus to issue it and it can’t be withdrawn when management changes.
The Trump administration appealed this to the Supreme Court and the case is to be heard in November. Today, however, we got a glance at the argument.
Justice Department lawyers told the Supreme Court on Monday that President Trump acted lawfully in September 2017 when he decided to end an Obama-era program that protects young undocumented immigrants from deportation.
In a legal brief submitted to the court, the lawyers asserted that the president was fully within his rights to eliminate the program, known as Deferred Action for Childhood Arrivals, or DACA, and said the lower courts were mistaken when they said Mr. Trump’s action almost two years ago was arbitrary.
The Department of Homeland Security “correctly, and at a minimum reasonably, concluded that DACA is unlawful,” the lawyers argued, disputing the conclusions by the lower court judges about the three reasons the administration gave for ending the program. “None of those three grounds is remotely arbitrary or capricious, let alone all three.”
The Supreme Court is scheduled to hear arguments about the fate of the program in November. The justices could decide the case next spring or summer, just as the presidential election campaign is in full swing.
The government’s brief, filed late Monday, is the first salvo in what could be one of the biggest legal tests of the president’s immigration agenda. The outcome of the case will probably determine whether Mr. Trump can make good on a central campaign promise.
I think that it is a safe bet that this version of DACA is dead. Given the way the Supreme Court has ruled, it is very difficult to see the same majority that has upheld President Trump’s actions on immigration so far suddenly decide that this administration must continue to carry out the policies of the previous one given the lack of fact finding or public comment or anything more than one person signing a memo.
That, of course, creates a whole new series of problems for Democrats and Republicans. The Democrats threw away a perfectly good chance to reach an permanent DACA settlement early in Trump’s presidency but decided they would much rather have the issue to fund-raise off from than having a solution. The House Democrats will have to propose some kind of bullsh** bill, the question then being will they overreach and propose something that can’t pass (energizing the open borders types but putting red and purple district Democrats on record on a massive amnesty bill)? Or will they actually try to find a bill the Senate can live with? That, of course, was a rhetorical question. For the Republicans the question is do they hold firm or cave? And will President Trump create his own DACA once the Obama one is dead or will he start deporting DREAMers?
Because it is an election year, neither side will have much of an incentive to compromise. And, to tell you the truth, I’ve sort of lost sympathy for the whole DREAMer nonsense and I suspect that many in the GOP and in the country at large are also close to having their give-a-sh** circuit breaker trip along with me.