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Thursday, November 14, 2019

ANALYSIS/OPINION:

In October 2010, responding to demands from the open-borders lobby that he change immigration law unilaterally, President Barack Obama declared, “I am not king. I can’t do these things just by myself.”

In March 2011, he said that with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” Two months later, in May 2011, Mr. Obama conceded that he couldn’t “just bypass Congress and change the [immigration] law myself. That’s not how a democracy works.”


If those quotes from Mr. Obama weren’t front and center in Solicitor General Noel Francisco’s oral argument before the U.S. Supreme Court on Tuesday, they should have been, as the justices weigh the fate of Mr. Obama’s arguably unconstitutional Deferred Action for Childhood Arrivals (DACA) program.

If they were, the high court should have no choice but to rule in favor of President Trump’s efforts to end the program, which unilaterally extended to young people brought to the country by illegal immigrants protection from deportation, renewable every two years, but for all practical purposes on a permanent basis.

Ignoring his own admonitions, Mr. Obama on June 15, 2012, had his Department of Homeland Security issue a decree effectuating DACA, the only defense, legal or otherwise, for which is “the end justifies the means.” (Contrary to popular belief, it wasn’t a presidential executive order. It was just a memo issued by DHS Secretary Janet Napolitano.)

Characterizing it as “prosecutorial discretion,” the quasi-amnesty was extended to people brought to the country before age 16 and are employed or pursuing employment or schooling and have no serious criminal record.

On Aug. 23, 2012, eight days after the first DACA applications were filed, the president of the labor union representing Immigration and Customs Enforcement personnel sued to halt the program. It has been percolating through the federal court system ever since, even as Mr. Trump has been seeking to overturn his predecessor’s act of dubious constitutionality.

The case now before the Supreme Court hinges on whether Mr. Trump dotted all the “i’s” and crossed all the “t’s” in the process of rescinding DACA in accordance with the Administrative Procedure Act. The arcane 1946 statute spells out how federal agencies are supposed to take such actions.

“The case turns on whether this administration properly rescinded DACA as a matter of administrative law,” explained Hiroshi Motomura, a UCLA law professor.

Never mind that Mr. Obama and his DHS secretary didn’t follow the prescribed process of issuing a notice and seeking public comment before unilaterally implementing DACA. Hypocritically, Ms. Napolitano — now the president of the University of California system — filed a lawsuit challenging the Trump administration’s attempt to phase out DACA, citing that same lack of notice-and-comment process.

Given the double standard, this shouldn’t be a difficult decision for the Supreme Court to make. Apart from the likely unconstitutionality of DACA, since it was put on the books contrary to the legal administrative processes, it necessarily follows that it should be able to be terminated in like fashion.

Indeed, even the lower court judges who have ruled against the president’s efforts to phase out DACA have conceded Mr. Trump has the authority to do so, albeit insisting that he must follow proper procedures.

If the separation of powers and the rule of law still mean anything, the Supreme Court should not lend its imprimatur to this double standard, and it should invalidate DACA.

The fact that most of the amicus briefs filed in the three cases that were consolidated for Tuesday’s hearing were in support of DACA doesn’t make the program any less unconstitutional. Nor does the fact that an estimated 700,000 “dreamers” have availed themselves of its quasi-amnesty over the past seven-plus years.

If the Supreme Court strikes down DACA, as it should, it won’t lead to immediate mass deportations, as its apologists darkly suggest. Rather, it will force intransigent Democrats in Congress opposed to even modest border-security measures to the bargaining table with Mr. Trump.

Back in January 2018, the president offered Democrats a DACA-legalization deal that border hawks considered overly generous in exchange for full funding of a border wall and an end to chain migration. That deal, or one like it, likely will be put back on the table if DACA is struck down.

Sob stories aside, if Democrats were serious about wanting to protect the “dreamers,” and not just catering to the open-borders lobby, they would agree to the deal.


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