Federal Court: Obama’s DACA Order Unconstitutional

Politicians and the media tend to operate in the belief that the American people are not paying attention – and also, have short memories.  That is why they produce contemporary transactional narratives that do not fully inform – or maybe misinform intentionally.  Eh?

Recently, a federal court declared the Deferred Action of Childhood Arrivals (DACA) program to be unconstitutional – and called for it to be eased out over time.  Democrats are quick to criticize the decision of the court – and they vow to fight it with appeals.  Of course, they are not telling the full factual story.  They are playing to dubious political narratives.

There is a history to the situation in which the DACA folks find themselves. How many of those who are technically illegal aliens because they were brought here illegally by their parents is unclear – but it is certainly in the tens of millions and growing.

Contrary to the political implication in the DACA title, they are not all children.  In fact, they are mostly adults – some even approaching middle age.  That, however, does not change their status.

Most Americans – and most politicians – oppose anything close to mass deportation.  Democrat politicians lean to no deportations, while Republicans tend to believe that we should use this opportunity to deport those involved in serious crimes. 

Democrats suggest that there are no criminals among the DACA people.  One does not have to secure police records to know that is not true.  You do not have tens of millions of random people without having a number of bad ass criminals in the crowd.

So, with most Americans – and politicians of both parties — in favor of normalizing the DACA folks, why does it not happen?

There are two obstacles.  First is the question of the vote.  Democrats want to admit all of them at once – no vetting for criminals – and to accelerate their citizenship to make them voters.  That is predicated on their belief that that vast majority of these “new citizens” will support the Democratic Party.  That could be true, but I am not convinced that it would be as lopsided as Democrats believe.  The voting impact may be blunted since most of the DACA folks already reside in very blue states and cities.

The second problem is … WHO should be establishing the policies involving the perambulation of the DACA folks to legal residency and citizenship.

The first issue can be easily solved, and Republicans have offered a solution.  Provide the DACA people with an immediate legal status for a period of five or ten years before they can apply for citizenship.  We should, of course, vet and deport those with Class-A criminal records AND those who commit Class-A criminal felonies during the waiting period.

By all measures, including polling, the DACA folks would happily embrace that option.  Their primary goal is to remove the uncertainty over their presence in the United States.  They want to remain in America.  Americans want them to remain.  And America needs them to support economic growth.

The big stumbling block is WHO is supposed to fix the problem.  That answer requires a bit of history.

For many years, the Congress has refused to address the issue of the children of illegal aliens – the DACA kids (at the time).  The numbers were far fewer — and those involved were much younger.  That was a propitious time for Congress to pass legislation that would have resolved the problem at its earliest time and prevented what we have today.  Instead, one Congress after another kicked the can down the road – and the problem grew like a snowball heading down a hill (apologies for the mixed metaphor).

Enter President Obama – a recognized constitutional scholar by virtue of his status as a guest lecturer at the University of Chicago – who declared that as President, he did NOT have the constitutional authority to address the DACA issue by Executive Order.

For some reason, the learned Obama changed his mind.  He did issue a short-term Executive Order protecting the DACA people from deportation.  Because of the obvious question of constitutionality, lawsuits were filed in federal courts to decide the legitimacy of Obama’s Executive Order.  Those cases have been sluggishly moving through the courts until the recent decision.

You will notice that I called Obama’s Executive Order “temporary.”  That is where he flimflammed the DACA people.  It was not a permanent solution.  The Obama Executive Order was crafted to terminate in a few years – just long enough to kick the problem to a successor President.  He did not provide the certainty that the DACA folks wanted and needed.  He just got the problem off his desk.

The recent decision of the federal court did not come as a surprise to the community of constitutional scholars.  Many of them predicted that the Obama Executive Order would be declared an abuse of presidential power – in other words, unconstitutional.  He was assuming the powers of Congress – which in this case they were all too happy to cede to the President.

Weeelll … that meant that the issue would land in the lap of President Trump.   And it did. 

Although Trump had stated his desire to provide legal status to all the DACA folks – sans the criminal element – he would not issue another Executive Order because he and the lawyers still believed such an action is unconstitutional AND that the federal courts would eventually declare it so.

What appeared to be based on a vague “reliance doctrine,” a federal court banned the Trump administration from taking any action against the DACA folks even though no one was about to launch mass deportations.

Trump proved to be a constitutionalist – rather than the authoritarian he is often accused of being – by making it clear that the power to resolve the issues rested SOLELY with the Congress – and only they could provide a PERMANENT resolution.  Even if Trump had re-issued the Executive Order, it would have been struck down by the court or possibly reversed by a future President.  DACA people need a permanent solution – and only Congress could provide that.

For decades, Congress has ducked, dodged and deferred on the issue only to find it back in its lap.  It is not a problem Obama could fix – or that Trump could have fixed.  The Supreme Court cannot fix the problem.  It can only rule on the constitutionality of attempted fixes by the other branches  It requires Congress doing its job within the constraints of the Constitution.

So, what is the chance that Congress will act?  Pretty slim.  They are preoccupied with all that massive President Biden legislation.  Stopping his big government spending and control is more critical than the DACA issue at this time.  Even the far left is going to ignore it as they try to impose top-down elitist governance over America. 

Congress will use the appeal of the recent court case as a reason to do nothing for now.  They will likely wait until it reaches and is decided by the Supreme Court – and that is likely to be years down the road.

The good news for the DACA folks is that at least no one is going to kick them out of the country.  Just continuing uncertainty as the Congress cans gets kick further down the road.  Which means we could be dealing with DACA senior citizens in the future.  Remember that the first letter in DACA stands for “Deferred” – and that is the operative word for Congress.

So, there ‘tis.