Even in our divided politics, it should be a matter of consensus that the president of the United States can’t write laws on his own.
That’s what President Barack Obama did twice when he unilaterally granted amnesties to swaths of the illegal immigrant population. The courts blocked one of these measures, known as DAPA, and President Donald Trump has now begun the process of ending the other, DACA, on a delayed, rolling basis.
In a country with a firmer commitment to its Constitution and the rule of law, there’d be robust argument over how to deal with the DACA recipients — so-called DREAMers who were brought here by their illegal-immigrant parents as children — but no question that Congress is the appropriate body for considering the matter, not the executive branch. Instead, President Trump is getting roundly denounced by all his usual critics for inviting Congress to work its will. His decision is a relatively modest way to roll back what is clearly an extralegal act. The president goes out of his way to minimize disruption for current DACA recipients. The administration will stop accepting new applications for the program but will continue to consider two-year renewals for recipients whose status is expiring between now and March 5.
This gives Congress a six-month window for its own solution before anyone’s status changes. The proximate cause of the Trump decision was a threat by the attorney general of Texas and other states to bring a suit challenging the legality of DACA. Attention had to be paid, because Texas and other states successfully got the other Obama amnesty, DAPA, enjoined by the courts. In a Facebook post, Obama waves off the legal challenge. He says DACA is based “on the well-established legal principle of prosecutorial discretion.” He maintained the exact same thing about DAPA, and that didn’t save it in the courts, including the Supreme Court.
True prosecutorial discretion involves a case-by-case determination by authorities. Obama’s executive amnesties were sweeping new dispensations designed to apply to broad categories of illegal immigrants. They didn’t involve simply deciding not to prioritize the deportation of the affected illegal immigrants, but conferred various positive benefits on them, most importantly work permits. This is clearly a new legal system for these immigrants, and in fact, President Obama once slipped and told an audience, “I just took action to change the law.”
Prior to DACA, Obama repeatedly said that he didn’t have the authority to implement his own amnesty absent congressional action — before doing just that.
Trump is giving Congress another chance. It isn’t hard to see the parameters of a deal: a codification of DACA, putting it on firm legal footing, in exchange for enforcement measures.
Whatever Congress arrives at, it will have more legitimacy than the jerry-rigged legislating of a president wielding a pen and a phone. President Trump has exercised his powers foolishly at times, but he’s never exceeded them.
Lowry is editor of the National Review.