On Monday, September 11, 2017, California Attorney General Xavier Baccerra filed a lawsuit against the Trump Administration for ending DACA. California joins 15 other states and the District of Columbia in seeking to block President Trump from rescinding the Deferred Action of Childhood Arrival program as established by the Obama administration in 2012. To date, there are approximately 800,000 DACA recipients.
All the lawsuits essentially contend that the Trump administration acted unconstitutionally and unlawfully in denying the due process rights of DACA recipients and that terminating the program violates their equal protection under law.
The charge that Trump acted unconstitutionally, of course, brings into question whether DACA itself was unconstitutional. At the time that Presidential Obama announced the policy, detractors denounced the program as an abuse of executive power, stating that the president does not have the authority to waive and create laws, which is the purview of Congress.
The constitutionality debate deserves to be had because the lives of 800,000 people will be affected one way or another. Yet, in rescinding DACA, President Trump has delayed full termination for 6 months, thereby giving Congress time to settle the issue.
There is a good argument that Congress’s inability—or ineffectiveness—in passing any kind of immigration reform forced Obama to sign DACA. Using executive power also prevented Congress from overturning DACA, in particular because Congress could not defund the program. In a sort of brilliant policy slight-of-hand, DACA is almost entirely funded by its own application fees ($495 per application, multiple by 800,000).
While Congress was not ready (or reluctant) to address the immigration issue in 2012, the best way to negotiate a bipartisan deal might be to act now. After all, only Congress can create a long-term solution—DACA was always a mere temporary fix. Last week Trump again met with Chuck Schumer and Nancy Pelosi, signaling a deal is pending. If Congress does indeed pass a bill with some form of the Dream Act, the debate on DACA’s unconstitutionality and Trump’s subsequently rescission would be rendered moot.
(Posted on Miss Bennett’s Polite Political Society)