Is anyone really surprised that President Trump decided to
rescind the Deferred Action for Childhood Arrivals (DACA) program? After all,
he didn’t win the election by appealing to the better angels of our nature, did
he? And when he made a wall along our southern border a primary feature of his
campaign (along with the comic relief of insisting that Mexico would pay for
it), it ought to have been fairly clear that the DACA program would not survive
long under a Trump presidency.
It doesn’t matter that “the nearly 800,000 individuals who
have received the protections have started families, pursued careers and
studied in schools and universities across the United States.” [1]
It is of no moment “that many Dreamers have never known another home than the
US.” Rescinding the DACA program is precisely the sort of thing he was elected
to do. While he may have gone from promising a healthcare plan that would cover
everybody during the presidential campaign to touting one that would result in
tens of thousands of people losing their health coverage as president, this
latest action is right in line with the Donald Trump we saw as a presidential
candidate.
There is a civics lesson to be learned here.
The reader will recall that the Obama administration
attempted to expand the reach of the DACA program in 2014. [2]
The idea was to make millions more people eligible for the program, expand the
time they were allowed to remain in the country, and develop a new but similar
plan for people who had a son or daughter who was either a U.S. citizen or a
legal resident. Twenty-seven states with Republican governors didn’t take
kindly to this, sued, and obtained a preliminary injunction against the program
expansion pending trial. (The subsequent election of Donald Trump rendered the
litigation inconsequential.)
Why would any American court rule against such a palpable
act of human kindness? The problem is separation of powers. The president,
regardless of whether you love him or hate him, cannot make laws. He can sign
legislation passed by Congress, or try to veto it, but he cannot make laws all
by himself. If he tries to do it, as it seems that Obama was doing in this
case, the courts are going to restrain him without asking whether the president’s
decree is a good or a bad idea.
At the same time, the president has a very specific
constitutional duty: to see to it that the laws are faithfully executed. [3]
So it is not a stupid argument that the president should be enforcing the laws
on the books rather than making up his own. To be sure, he or his subordinates
can issue orders or regulations. But those have to be consistent with
congressionally passed laws already existing.
And thus the president has been able to wash off some of the
stink from this latest move, by announcing that the administration will
continue to renew “permits for anyone whose status expires in the next six
months, giving Congress time to act before any currently protected individuals
lose their ability to work, study and live without fear in the US.” He is
obviously punting to Congress. But, actually, that is exactly who should have
the ball.
No one should be buffaloed into believing that Donald Trump
is overly concerned about the fate of Dreamers. But his stated position that it
is for Congress to grapple with the issue of non-citizens brought to this
country in childhood is right on the mark.
Now, of course, it is not likely that Congress wants to do
that. Its members showed no interest in doing so at all during the Obama
administration, which is why Mr. Obama, in desperation, engaged in what was
probably an unconstitutional action. But, perhaps, a Republican in the White
House might provide them more inspiration. They may not like the current
occupant overmuch, but it would be an opportunity to earn the party a merit
badge.
Of course, it is risky for Congress to do its job. When
politicians do their jobs they become answerable for what they do. Thus,
Congress has taken the craven and cowardly path when it is available, which is
why it has effectively given up its constitutional power to declare war to the
president. Who wants to be responsible for a war, after all? Something might go
wrong. On the other hand, who wants to look timid in the face of even imaginary
enemies? Better to let someone else handle it and suffer whatever repercussions
develop.
But now we have an issue that has publicly been tossed into
Congress’s lap. If it chooses inaction, it will be at once contemptible and
visible to all. Doing nothing means that people who have never known another
country than the United States might be deported to what is, for them, a
foreign land; and this after they have spent most of their lives being inoffensive
and productive participants in American society.
One hopes that even the
wealthiest of mean-spirited campaign donors will prove unable to inspire members
of Congress to carry an action like that with them into eternity.
