The Deferred Action for Childhood Arrivals (DACA) immigration policy – which allowed some illegal aliens brought to the United States as minors to remain legally — is at the center of a battle at the Supreme Court this week. The court consolidated three cases and whittled them down to: Does the Supreme Court have the legal right to review the DACA policy? If so, then it must determine “whether DHS’s decision to wind down the DACA policy is lawful.”
I’ve Got a Pen, and I’ve Got a Phone
The DACA lawsuits against the administration’s rules started not long after the program launched. It wasn’t liberal groups suing President Donald Trump’s administration; it was Republican governors suing then-President Barack Obama. Obama famously initiated DACA after he couldn’t get the DREAM Act through Congress. The Development, Relief, and Education for Alien Minors, or DREAM, Act was first introduced on a bipartisan basis in 2001 to allow kids brought into the country illegally the chance to stay. They had to pay a fee and avoid trouble while they were here, but otherwise they could remain. And the act did not pass in Congress. Time after time and version after version of the bill failed from 2001 to 2012. Then Obama decided he could unilaterally change the law after all.
In one of those “this would be funny if it weren’t so god-awful” tragic ways, Obama went from saying that he simply could not change the law on his own to doing just that. Video montages feature him claiming his inability repeatedly, such as this clip with Obama on the point:
“The problem is that I’m president of the United States, I’m not the emperor of the United States.”
L’état, c’est moi
Obama never declared himself emperor; he simply assumed powers he previously had ascribed to one. Announcing that the DREAM Act would become law by his own hand, he held a ceremony in the Rose Garden to celebrate the news that he could independently modify the law. They didn’t call it that, but rather deferred action, and DACA was born:
“Over the next few months, eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization.”
And so, like magic, previously illegal aliens gained quasi-legal status. The policy went on until 2014, when Democrats took a mid-term drubbing and lost the Senate majority. Coincidentally, at that time, the Obama administration proposed changes to DACA, eliminating many requirements, and that allowed hundreds of thousands of undocumented immigrants (aka likely Democrat voters) to be added. Driven by racism, or perhaps the belief that the constitutionally prescribed legislative process should be followed, Texas and 25 other states with Republican governors sued the administration.
Merrick Will Save Us!
The case worked its way to the Supreme Court, which ruled on it in 2016. The states brought numerous arguments for why the policy should be disallowed, but let’s focus on one: President Obama usurped the legislative branch by bestowing “lawful presence” and work permits on immigrants in violation of the mandate of Congress. The problem was that Justice Antonin Scalia’s death had left an open seat, which allowed for a 4-4 tie vote. That’s why we have to go through the dance again.
The partners have changed, and the music is a little different, but key questions remain. Is this decision of the president – now featuring Trump’s actions instead of Obama’s – something the Supreme Court has the right to review? If so, is the Trump administration legally permitted to end the DACA program? Well, those dance judges have changed quite a bit with the additions of Justices Neil Gorsuch and Brett Kavanaugh. I suspect the result may well bring to mind another of Obama’s famous quotes: “Elections have consequences.”
Read more from Scott D. Cosenza.