by Zachary D. Rogers
The time has come to end the Obama Administration’s controversial Deferred Action for Childhood Arrivals program. President Trump attempted to end the program as it began—through executive action— only to be thwarted by the federal courts. The question was argued last month before U.S. Supreme Court. Since Americans have notoriously short memories, this is an excellent opportunity to review how the program was illegally and unconstitutionally instituted.
The immigration policy of President Barack Obama is reflective of the modern administrative state and its influence upon how the institutions of government operate. His method of action and the response of the other branches is indicative of the progressive influence on the Executive, Congress, and the Judiciary much to the detriment of our country’s design.
The Framers of the Constitution purposefully created a limited government with enumerated powers and duties to secure the freedom of citizens. They were governed on the basis of consent. Citizens elected competent men who had a stake in local affairs. The Constitution’s tripartite division of government was intended to provide an energetic yet restrained government. Its separation of powers as well as checks and balances protected liberty while securing property. This limited form of government was resistant to the radical expansion of government at the rapid pace the Progressives sought.
The Progressives created the administrative state, White House bureaucracy, and the plebiscitary presidency to ensure America advanced (according to their theory) in history. Progressives believed the separation of powers in three branches of government made them unable to deal with the exigencies of the modern world. Constitutional organization did not allow swift action. To meet this problem, “agencies were created whose functions embraced the three aspects of government. Rule-making, enforcement, and the disposition of competing claims made by contending parties were all entrusted to them.” Experts would rule instead of the people’s elected representatives through a process unfavorable to the rule of law and the delegation of authority that combined the executive, legislative, and judicial powers thereby insulating them from the will of the people as channeled through elections.
While the Democratic Party held power, President Obama was willing to work with Congress to pass major legislation. Legislation included federal sentencing reform, Obamacare, and his economic stimulus package. However, when the Democratic Party lost the majority necessary to pass legislation in 2010, Obama changed tactics and begin to rely more upon executive authority.
President Obama announced his executive action on June 15, 2012, in a speech at the Rose Garden. “This morning,” he said, “Secretary Napolitano announced new actions my administration will take to mend our nation’s immigration policy, to make it fairer, more efficient, and more just—specifically for certain young people sometimes called ‘Dreamers.’”
Executive action, the president explained, was necessary because Congress had chosen not to act. Therefore, Obama acted. The president would use his prosecutorial discretion to focus on the most dangerous criminals while allowing the rest to contribute to American society.
The action, Obama emphasized, was not amnesty, immunity, or a permanent fix. It was “a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.” Executive action would focus the limited resources available, removing the most dangerous illegal immigrants, enabling Dreamers to integrate into America. Executive agencies were instructed to implement the new policy.
Administrative agencies would enforce the new standards. On June 15, 2012, Homeland Security Secretary Janet Napolitano issued a memorandum, guiding the actions of U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services to implement the new policy. The memorandum clarified enforcement against those who came to the United States at a young age against their will and who are not a danger to society. Because they are a low-level threat, they constitute a low enforcement priority. The memo provided the following enforcement standards:
- an immigrant came to the United States under the age of 16;
- has continuously resided in the United States for [at] least five years preceding the date of this memorandum and is present in the United States on the date of this memorandum;
is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; - has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
- is not above the age of 30.
Napolitano proceeded to explain that American immigration law was not inflexible but was designed to provide consideration of the personal circumstances of illegal immigrants on a case-by-case basis. The administration reasoned many of these people (illegal immigrants) are productive members of society, have already contributed to society, and are a low threat to the security of the United States. The agencies listed in the memorandum were directed to adjust their policies accordingly.
Napolitano was careful to emphasize this was not a legislative act but rather an act of discretion. The memorandum did not confer a “substantive right, immigration status, or pathway to citizenship.” Only Congress acting in its legislative capacity could confer such privileges.
Congress had not passed the DREAM Act. The deadlock complained of by Obama and Democrats was the result of duly-elected representatives fulfilling their responsibility to block legislation that is not deemed to be in the best interest of the nation. Inaction is a valid choice under the Constitution. If the people desire a change they will elect representatives who agree. While the Democrats in Congress worked vigorously to pass the DREAM Act, they were unable to procure the necessary majority of votes.
The reasons to end DACA are clear. First, it is an overly broad interpretation of prosecutorial discretion and was unilaterally imposed by Obama. Second, it harms voters, specifically the ones who supported Trump in 2016 through job competition and the burden it imposes on the social services these voters rely on in times of trouble.
Third, DACA does not promote assimilation into the Republic and devotion to the principles of the Founding because it brings in too many illegal immigrants from countries with principles and practices divergent from the Declaration of Independence and the Constitution.
Fourth, it is unfair to immigrants by favoring illegal aliens who are able to cross the border against those who cannot.
Fifth, it protects criminals and gang members.
For all of these reasons, the program should be ended and Congress should engage in the serious work of crafting immigration legislation to address the ills that confront us.
DACA poses a threat to the constitutional regime; harms Americans citizens; and fails to integrate aliens into the American regime. It is also a matter of grave injustice. It rewards those who violate the law while disfavoring those who are physically unable to cross the border.
The Democratic Party and numerous media personalities are harping on constitutional norms. Constitutional norms require respecting the separation of powers. Only Congress has the power to craft legislative while the president executes it. Overturning DACA restores the constitutional norm.
If the people in general and Democrats in particular want new immigration laws, there is a process for achieving this. It requires engaging in rational debate with the opposition in order to pass a bill through Congress and persuading the president to sign it into law. Any other method is illegal, dangerous, and should be treated as such. This is the perfect situation for Congress to assert itself rather than unconstitutionally delegate its authority.
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Zachary Rogers is a graduate of UCCS, Hillsdale College, and the John Jay Institute. Additionally, he is a former intern of the Independence Institute, Family Research Council, and the Claremont Institute. He resides in Arkansas.
Photo “DACA Protests” by Rhododendrites. CC BY-SA 4.0.
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