Trump: Why can’t I executive-order “unlawful” DACA out of existence?


That’s actually not a bad question, and one of the better topics on Donald Trump’s Twitter feed this morning. However, it’s a question that the Supreme Court has already said it would address in arguments this fall, so why is Trump bringing it up now? Here’s a hint — who came back to work this week in Washington?

That has been the primary argument over Trump’s attempts to close out the Deferred Action on Childhood Arrivals program, created by Barack Obama through executive order. The EO directed immigration officials and prosecutors to use their discretion not to pursue deportation cases against children brought into the country illegally as long as they stayed in school and didn’t break other laws. A parallel program aimed at protecting the parents, DAPA, got shot down by federal courts because it went further than prosecutorial discretion and allowed parents to get work permits in violation of federal law. EOs cannot override statute, but the president can direct prosecutorial priorities.

The issue with DACA is that it’s not statutory, which — theoretically, anyway — means any succeeding president can impose his/her own prosecutorial discretion in the same manner. Trump tried that by issuing countermanding EOs, which courts have blocked through some legal sophistry. The basic question comes down to this: if Obama could legally do this through an EO, then Trump can legally undo it the same way. If Trump can’t undo it with an EO, then Obama couldn’t legally do it in the first place without congressional action, which then makes DACA illegal anyway. Thus far, courts have instead opted for outcome-based decisions which necessarily impede presidential authority, but only for some presidents.

It’s untenable, and the Supreme Court has already agreed to cut through the nonsense to get to that question. Arguments will be heard in the comings weeks to unwind the mess. Nothing much has changed since then, except that Congress returned to work this week. And so

President Trump suggested Friday that if he prevails in a Supreme Court case next term he would be open to a bipartisan deal in Congress on the Obama-era program that shields young undocumented immigrants brought to the country as children from deportation. …

Since his administration’s move to scuttle the program in 2017, Trump at times has said he would like to find a way to protect those in the program. But attempts to work out a political compromise have foundered amid the larger partisan debate over immigration and border security.

Democrats are likely to view Trump’s latest overture skeptically.

Well, at least until the Supreme Court rules on it. It’s still tough to predict what will happen this fall on this question, but it will at least finally end the legislative status quo on immigration policy. At one point, Democrats appeared ready to cut a deal with Trump to swap a statutory replacement for DACA for border-wall funding and some reforms on asylum. After the courts intervened to keep DACA in place, though, the pressure to make a deal evaporated.

The best thing the Supreme Court can do in this instance is to get the judiciary out of the way. If they rule in Trump’s favor, Democrats will find themselves under tremendous pressure to get a DACA fix in place before the next election — and before the DoJ and DHS start enforcing the law under Trump’s EO. Trump is reminding them that he’s willing to cut a deal, and that maybe it would be better to start now rather than wait until Trump might have the upper hand. Assuming he wins at the Supreme Court, of course.

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