Trump Has Not Ended DACA

by Andrew C. McCarthy

I feel like I’m living in an alternative universe when I read about the state attorneys general who are suing President Trump over his purported decision to end DACA (the subject of Alexandra’s post below), or read about President Obama’s grousing over Trump’s supposed termination of the program (the subject of Rich’s earlier post).

I have a new column up on the homepage explaining that Trump has not ended DACA. For the most part, Trump hasn’t even suspended DACA. It is still going to be operating throughout the next six months, during which he hopes Congress will codify it in federal law.

Moreover, the president has now made it clear that he wants the program legalized. Trump is in a box because he likes DACA but opportunistically railed against it as a candidate. In trying to square that circle, hoping his core supporters won’t notice the difference (though I suspect they will), his formerly thunderous objection to DACA has been reduced to a whimper over its formal legal niceties (executive action rather than statutory law – as if Trump cared about such things). But the reality is: This president, like the last one, fully supports the substance of DACA. As Rich has explained (and as I discuss in the column), Trump has undermined any leverage that could have been used to win concessions on border security and immigration law improvements. He has made it clear that he’s willing to work with his new pals “Chuck and Nancy” to get that done (there go Mitch and Paul, thrown under the Trump Train). He has further signaled that, if Congress can’t get DACA done legislatively, he’ll continue the program through executive action, just like his predecessor.

Speaking of Obama, Rich has another post about his Facebook rant. It is a good reminder of what Yuval nails as the “peculiar combination of recklessness and moral preening that so often characterized his approach to the presidency.” Perhaps the most audacious part is Obama’s claim that DACA is based on “the well-established legal principle of prosecutorial discretion.” This is the resource-allocation doctrine that featured prominently in my 2014 book, Faithless Execution, because it was one of the major ways Obama rationalized flouting his constitutional duty to enforce the laws as written. Of course, prosecutorial discretion has nothing to do with usurping Congress’s authority to confer positive legal benefits, as DACA does; and even the non-enforcement aspects of DACA are not reflective of prosecutorial discretion principles because the program is a categorical amnesty for potentially millions of illegal aliens, not a series of case-by-case enforcement determinations.

But all of that aside, prosecutorial discretion is how Trump will protect almost all of the DREAMers for the next six months. As I point out in the column, they will be made a low enforcement priority and none but criminal aliens will face detention and deportation. It is remarkable to find Obama condemning Trump for ending a program Trump has not actually ended, while simultaneously defending DACA on prosecutorial discretion principles, which Obama invoked but did not follow, and which Trump is actually following while preserving Obama’s unconstitutional program. Perfect.

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