President Barack Obama created the Deferred Action for Childhood Arrivals program (or DACA) in 2012 to allow people who entered the U.S. illegally as children to avoid deportation and legally work and study in America. In 2017, President Donald Trump announced he would end the program after six months, giving Congress a window to pass immigration reform.
To understand what happens next, we first have to understand why DACA was doomed from the start: because it was always unconstitutional.
As a democracy, in the United States the President does not have the power to create policies. It is the President’s job to do the work that Congress assigns. Early in his administration, President Obama often spoke about the dangers of executive orders:
“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case, because there are laws on the books that Congress has passed … you know that we’ve got three branches of government. Congress passes the law. The executive branch’s job is to enforce and implement those laws. And then the judiciary has to interpret the laws.”
However, later on he disregarded his own advice, signing an executive order in 2012 to create the DACA program.
By trying to take matters into his own hands, instead of going through Congress, President Obama set up the program to fail as it would always be up to the current president to decide if they wanted to keep it. In fact, another program President Obama created by executive order, Parents of Americans and Lawful Permanent Residents (DAPA), was blocked by the Supreme Court. The DACA program would likely have met the same the fate.
By going around Congress and setting up the program on such a shaky foundation, President Obama gave the children DACA was supposed to help false hope.
So here we are, and the question remains: as a good and generous people, what should we do? How can we can better serve those in our communities who are affected by DACA?
Is the answer to deport 800,000 people? No. There is a better way, and Congress has six months to act.
They will likely pair DACA-like legislation with border security and legal immigration reform. After all, without stronger border security, illegal immigrants will continue to try and come into the country.
Ideally Congress should consider enacting a range of reforms to legal immigration. Legal immigration benefits the American economy by filling jobs and bringing in fresh ideas and talent. The current system, however, is needlessly bureaucratic.
Congress would have had little incentive to take up a reform package if DACA had not been rescinded. Worse, President Obama’s abuse of power would have set a precedent that future presidents would emulate: if they couldn’t get what they wanted under the Constitutional, they could go around it. Letting DACA stand would enable a dangerous erosion of the rule of law that protects all of us from arbitrary use of power by the government.
In a Republic, there’s only one way to make laws and that’s through the legislature. Now Congress has a chance to do it right.
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