By HANS A. VON SPAKOVSKY
President Donald Trump has caught a lot of heat for rescinding the Deferred Action for Childhood Arrivals program with a six-month wind-down. Few people seem aware that heâ€™s ending an administrative amnesty for illegal aliens that President Barack Obama lacked the constitutional and legal authority to implement.
How do we know? Because even Obama admitted it â€” repeatedly.
Responding in October 2010 to demands he implement immigration reforms unilaterally, Obama declared, â€śI am not king. I canâ€™t do these things just by myself.â€ť In March 2011, he said that with â€śrespect to the notion that I can just suspend deportations through executive order, thatâ€™s just not the case.â€ť In May 2011, he acknowledged he couldnâ€™t â€śjust bypass Congress and change the (immigration) law myself. â€¦ Thatâ€™s not how a democracy works.â€ť
Yet in 2012, he did it anyway. He put DACA in place to provide pseudo-legal status to illegal aliens brought to the U.S. as minors, including as teenagers. He promised them they wouldnâ€™t be deported and provided them with work authorizations and access to Social Security numbers.
And he did this despite the fact the immigration laws passed by Congress do not give the president the ability to do this. Indeed, Congress specifically rejected bills to provide such benefits.
As Attorney General Jeff Sessions pointed out recently, DACA â€ścontributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences.â€ť Since most DACA beneficiaries are now adults, â€śit also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens,â€ť Sessions said.
The unconstitutionality of Obamaâ€™s actions were confirmed when Obama tried to implement a second, similar program in 2014 called the Deferred Action for Parents of Americans and Lawful Permanent Residents program, or DAPA. Like DACA, DAPA provided an administrative amnesty for illegal aliens who came to the U.S. as adults and gave them work authorizations and access to government benefits.
The Fifth Circuit Court of Appeals upheld a nationwide injunction against DAPA, which the Supreme Court allowed to stand. As the Fifth Circuit said, the fact the president declined to enforce the law and remove illegal aliens â€śdoes not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change.â€ť
Under our Constitution, Congress has plenary authority over immigration. The president only has the authority delegated to him by Congress â€” and Congress has never given the president the power to provide a pseudo-amnesty and government benefits to illegal aliens.
The DACA program suffers from exactly the same constitutional infirmities as DAPA. A number of states have threatened to sue the administration to stop the DACA program. In the face of that threat, Trump really had no choice. Sessionsâ€™ legal conclusion was that DACA â€śis vulnerable to the same legal and constitutional challenges that the courts recognized with respect to the DAPA program.â€ť
The place to have the debate about what to do about illegal aliens who were minors when they came to this country is in the halls of Congress, not the White House. Failure to correct this unilateral, unconstitutional overreach would set a dangerous precedent that weakens our constitutional balance of powers. As law professor Jonathan Turley said, â€śIf a president can claim sweeping discretion to suspend key federal laws, the entire legislative process becomes little more than a pretense.â€ť
When it comes to immigration, Sessions was correct when he said the â€ścompassionate thing is to end the lawlessness, enforce our laws, and, if Congress chooses to make changes to those laws, to do so through the process set forth by our Founders in a way that advances the interests of the nation.â€ť That is essential to preserving our constitutional republic.
Von Spakovsky is a senior legal fellow at the Heritage Foundation and co-author of â€śWhoâ€™s Counting? How Fraudsters and Bureaucrats Put Your Vote at Riskâ€ť and â€śObamaâ€™s Enforcer: Eric Holderâ€™s Justice Department.â€ť
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