The Corner

Law & the Courts

It Doesn’t Matter Whether DACA Is Popular

DACA supporters outside the White House, September 2017. (Kevin Lamarque/Reuters)

I understand that procedural arguments are boring, ineffective, and passe, and that fewer and fewer American are moved by them. But we might want pollsters and media outlets to understand the difference between policy outcomes and constitutional process.

Take a look at this non sequitur:

As with the Supreme Court’s recent re-imagining of Title VII protections, the media are acting as if the recent decision preventing Trump from immediately ending DACA was a referendum on values, empathy, and the intrinsic value of “Dreamers,” rather than on the ability of the president to simply fabricate laws by fiat.

There are a number of persuasive economic and moral arguments for legalizing the children of illegal immigrants. Indeed, as it happens, I support the goals of DACA. But, if they are to become law, they need to . . . well, become law. I also support dropping the corporate income tax to zero. That doesn’t mean I would approve of Donald Trump asking the IRS to stop collecting certain revenue streams by decree.

If you don’t believe that DACA circumvents the proper constitutional process, just hear out Barack Obama, who, on numerous occasions, admitted as much.

In October of 2010:

“… I am president, I am not king. I can’t do these things just by myself. We have a system of government that requires the Congress to work with the executive branch to make it happen.

In March of 2011:

“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case . . . . for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.”

In July of 2011:

“Now, I know some people want me to bypass Congress and change the laws on my own. And believe me, right now dealing with Congress, believe me, believe me, the idea of doing things on my own is very tempting. I promise you. Not just on immigration reform. But that’s not how; that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”

In Sept of 2011:

“And I think there’s been a great disservice done to the cause of getting the DREAM Act passed and getting comprehensive immigration passed by perpetrating the notion that somehow, by myself, I can go and do these things. It’s just not true . . . . We live in a democracy. You have to pass bills through the legislature, and then I can sign it.”

Obama didn’t lie about all the small things, only about all the big ones. And after signing the executive directive on DACA, Obama claimed it was just “a temporary stopgap measure.”

Should presidents be able to “bypass Congress” and “change the laws” using “a temporary stopgap measure,” and simply wait a few decades until his party has enough votes to pass it through the prescribed constitutional manner? Seems to me that undermines the entire purpose of having a Congress.

For years Democrats argued that Obama was impelled to act because Congress wouldn’t do its “job.” I’m sorry, but if you can’t elect enough people to pass your priorities, or you’re unable to find a compromise, that’s your problem. Congress is under no edict to pass liberal priorities. And Dreamers are not predestined for protection.

Anyway, if SCOTUS is going to endorse executive abuse, it should, at the very least, have the decency to allow both sides to engage in it equally.

“Eight years ago this week,” Obama wrote today, “we protected young people who were raised as part of our American family from deportation.” We didn’t do anything. You did, by yourself, without any congressional authorization, and against your own stated positions.

The question pollsters should be asking isn’t whether the Supreme Court’s rejection of Trump’s attempt to end the DACA “aligns” with Americans support for legal status of illegal immigrants, but rather if it aligns with the idea presidents can “bypass Congress and change the laws.”

Well, some presidents.


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