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September 6, 2017 Tyler J Herrmann 1Comment

Tyler is the Chairman of the Republican National Lawyers Association, Ohio Chapter.

President Trump’s decision to end DACA is the correct one.

Perhaps the best defense of President Trump’s decision to end the DACA program comes from the man who instituted it. About a year before ultimately creating DACA, President Obama said:

“With respect to the notion that I can just suspend deportations through executive order, that’s just not the case… There are enough laws on the books by Congress that are very clear in terms of how we have to enforce our immigration system that for me to simply, through executive order, ignore those congressional mandates would not conform with my appropriate role as President.”

As Obama himself conceded, enacting DACA with an executive order was illegal and outside the constitutional authority of the president. Liberal leaders have universally condemned Trump’s decision, calling it cruel and cowardly. I argue that Trump’s decision to end the program through a gradual phase-out was an act of compassion deserving praise. At least 10 states planned to challenge DACA in court if the administration hadn’t taken action by September 5th. It’s almost certain that a DACA challenge would have succeeded and it’s unlikely a court would have put such a generous phase-out process in place.

There are those who claim that DACA is a permissible exercise of “prosecutorial discretion. But prosecutorial discretion is supposed to be applied on a case by case basis after consideration of the facts and circumstances. In this case, more than 800,000 people were offered protected status without any sort of individual review. Would DACA defenders support Trump’s use of prosecutorial discretion if Congress fails to enact meaningful tax reform and he simply directs the IRS not to enforce the tax code? If not, would they be able to explain why one scenario is appropriate and the other is not? I doubt it.

“As Obama himself conceded, enacting DACA with an executive order was illegal and outside the constitutional authority of the president.”

Claims of cruelty on the part of Trump are also unfounded because, in addition to providing a gradual phase-out of the program, the president encouraged Congress to take action. President Trump should be commended for respecting the constitutional limits on his authority while also advocating for congressional action.

As Barry Goldwater said, we should “not attempt to discover whether legislation [or executive action] is ‘needed’ before [first determining] whether it is constitutionally permissible.” When it comes to DACA, there is no doubt that Congress has the authority to implement the program through legislation. Trump’s decision had nothing to do with the wisdom of the policy objectives behind DACA, and everything to do with respecting the constitutional separation of powers. Rather than criticize the president for his decision to restore the rule of law, those in favor of DACA should reach out to their congressional representatives and demand action.

For far too long, the Executive Branch has been quick to step in and fill the role reserved for the legislature. I am encouraged by this president’s willingness to accept his constitutional limitations.

Follow the author on Twitter: @tylerjherrmann

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  • TZ

    What cowardly nonsense! Even the article cited to support the unconstitutional premise, points to the valid use of prosecutorial discretion in cases of inadequate resources. Every prosecutor and law enforcement department has to determine how to apply allocated resources to best effect. Should you focus on prosecuting violent criminals or busting a bunch of teenagers for smoking pot? Or try to do the best you can across the board, knowing you will fall short? What is the best use of limited resources? You can’t stop all crime.

    Which is exactly the legal theory that President Obama used when crafting the Executive Order. Resources are not available to deport all the undocumented in the short term. As the chief executive, Obama made a decision to best use limited resources by prioritizing those who have committed crimes, etc. before the otherwise law abiding DACA recipients. The program recognized that because these children did not have the mens reas to violate immigration law, resources would be better used by allowing them to apply for temporary legal status provided they worked towards being productive members of society.

    And obviously Obama did not concede his actions were unconstitutional or illegal. That is a flat out silly lie. It doesn’t even make sense. Why would Obama do that? To make his order easier to overturn? What a dumb premise the author uses to support his declaration of unconstitutionality. Well I went to law school too and I think the author is full of it. This is not the slam dunk case the author implies. I know of no other situation where someone is punished for something a parent did while they were children. And what is the basis for stating that prosecutorial discretion is only constitutional if applied on a case by case basis? The author doesn’t provide any what so ever.

    Hard to believe someone with a law degree would have the stomach to author such an illogical and intentionally misleading article. I guess conservatives cannot make an argument without distorting the truth. And if the Republicans in Congress wanted Obama to deport the Dreamers they could of raised taxes to fund ICE sufficiently. But much like the Wall, when the rubber meets the road, conservatives will not put their money where their mouth is.