“I am president, I am not king. I can’t do these things just by myself.”
“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case.”
Despite these statements, President Obama nevertheless proceeded with his notorious DACA (Deferred Action for Childhood Arrivals) program. DACA unilaterally granted legal status to a whole class of illegal aliens without congressional approval. It therefore represents a dangerous exercise of executive power, which, if left unchecked, allows the President to set aside any duly enacted law. On Wednesday, as the attorney general of Texas, my office argued DACA’s unconstitutionality to a federal court.
Back in June 2017, I wrote a letter to President Trump urging him to follow through on his campaign promise to rescind DACA. True to his word, the President promised to cancel DACA by March5, 2018 if Congress did not amend federal law. When Congress failed to act and the president rescinded the original executive action, federal judges blocked him, issuing the logically inconsistent holdings that President Trump cannot unilaterally undo an executive action his predecessor had unilaterally undertaken in the first place.
These mystifying decisions seem to rest on the dubious idea that an executive action taken by President Obama enjoys sacrosanct status while President Trump, by contrast, lacks the full powers of his office. By judicial fiat, then, DACA remains with us.
While the Trump administration is rightly challenging this judicial invasion of its authority, my case is entirely separate from the actions brought by other states contesting his rescission of DACA. Texas is now leading a 10-state coalition arguing that DACA was unconstitutional from the get-go. Contrary to streams of erroneous and misleading reporting in Texas media, we are not asking the Court to strip existing DACA protections for those who are already in our country but only to halt new applications and renewals. This would prevent any more illegal actions in the future and once again provide Congress with an opportunity to act.
As attorney general, my purview is law and the Constitution. No president has the power to change the law simply because he is upset that Congress failed to enact his favored legislation. Such behavior is not only petulant and childish, but more importantly, it trashes the separation of powers, the very foundation of constitutional government.
For all the ink spilled in the media claiming to respond to Texas’ lawsuit, it’s astounding how rarely its opponents actually address its arguments. So complete is the disconnect that I wonder if they even take the time to read what my office filed, or if instead they feel that their policy position affords them a special dispensation to traffic in trite clichés and talking points, regardless of legal realities.
Repealing DACA is Constitutional, not partisan
DACA is legally identical to DAPA (Deferred Action for Parents of Americans), another presidential circumvention of Congress that the courts struck down in another Texas-led lawsuit. Both represent unprecedented presidential power grabs. DACA will soon meet the same fate as DAPA.
Whatever DACA’s economic contributions, they are not a legal justification for violating the Constitution, as its defenders almost invariably argue. Voters recognize this tactic as the dodge that it is. Those arguments belong in Congress where they can be fully heard and debated.
Protecting an unconstitutional executive action because it is good economics is like cutting out a tree’s roots to help the tree grow higher. The rule of law — and the Constitutional order it protects — is the cornerstone of American liberty and prosperity. The stability and predictability of law, guaranteed by the separation of powers, is indispensable for long-term economic vitality. The precedent DACA establishes — that foundational principles of democratic government can be cast aside whenever politically expedient — is no less corrosive for an economy than it is for self-government.
Ultimately this lawsuit is not about a particular policy, economic or otherwise, but about our very polity itself: should all the power of the federal government be concentrated in one person? The debate over DACA as policy is a question for lawmakers, and any solution must come from Congress, as the Constitution requires. Otherwise, having conceded the rule of law as a mere convenience, DACA’s legal protections will hardly be worth the paper they’re written on.