In December of 2014, Texas and 25 other states sued to prevent President Obama from implementing immigration policies he announced through his Secretary of Homeland Security in a November 2014 memorandum. Those policies are known as (1) the Deferred Action for Childhood Arrivals (DACA) and (2) Deferred Action for Parents of Americans (DAPA).


The key element of the policy is an Administrative decision not to deport children brought illegally into the United States by their parents. The Obama Administration justified its actions by claiming that it was simply exercising prosecutorial discretion, an exercise in hoop jumping that might even make a Clinton blush.


A federal district court in the Southern District of Texas blocked implementation of the order. The court ruled that the government did not comply with rulemaking procedures required by federal law. The Fifth Circuit Court of appeals affirmed the lower court’s ruling that DACA violated the requirements of the Administrative Procedure Act. In addition the Fifth Circuit, in its 2-1 decision, ruled that Obama’s order exceeded his authority, finding that the Immigration and Nationality Act does not permit deferred action.


The United States Supreme Court heard the case and the result was a tied 4-4 ruling, the effect of which is to leave the lower court’s rulings in place.


So: DACA may very well be good policy—but it was unlawfully decided. Substantively the Obama Administration unlawfully grabbed Congressional law making powers, violated the Administrative Procedure Act, and in so doing ran roughshod over the separation of powers. Moreover, President Obama explicitly rejected his Constitutional obligation to “take care that the laws be faithfully executed”.


This is precisely the type of behavior that the founders feared would lead to the President becoming a King. And so they created the separation of powers pitting “faction against faction” so that one branch would not become all-powerful and a threat to liberty. So it is clear, or ought to be, that DACA is unconstitutional and an affront to the separation of powers. The policy question is one that falls under the jurisdiction of Congress, which ought to get itself out of the habit of lying prostrate before the President and begin asserting its Constitutional prerogatives. If Congress wants to change the policy and legally safeguard children brought here illegally (which it should) then Congress can and should pass the legislation necessary to do so.


In our Republic, policymaking is properly the responsibility of the legislative branch. The Executive should enforce, not make, laws. And while we are at it, Administrative Agencies should be cut down to size. Or to borrow Donald Trump’s campaign pitch to African Americans—given the mess in Washington, what do we have to lose?



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