Wednesday, September 6, 2017

Trump's Rescinding DACA Is No Surprise, But the Ball Is in Congress's Court

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.