The Supreme Court has consistently given the executive branch wide latitude in the administration of immigration laws.
Columnist Tim Morris’ depiction of our president as a white knight defending the honor of the Constitution against the Deferred Action for Childhood Arrivals program fails to take adequate stock of the context in which the rescission of DACA took place and of the sound legal arguments on which the program was based.
First, it wasn’t too long ago that Morris’ constitutional champion was calling for a Muslim ban, in clear violation of the First Amendment. Second, ethics lawyers from Republican and Democratic administrations have sued President Trump for violation of the Constitution’s “Emoluments Clause” on account of his business dealings with foreign states. And let’s not forget his struggle with the concept of separation of powers. The DACA repeal was not about the honor of the Constitution.
Moreover, Morris dismisses the very legitimate legal premises on which DACA was based. The Supreme Court has consistently given the executive branch wide latitude in the administration of immigration laws, as when it struck down most of Arizona’s controversial SB 1070 bill. Well before DACA, federal immigration authorities used “deferred action, ” which does make individuals eligible for work authorization, as a form of prosecutorial discretion. “Deferred action” simply indicates that an individual identified as deportable is a low priority for enforcement.
Grants of deferred action prior to DACA largely lacked centralized guidance and depended on the individual judgment of the officer considering the request. DACA was an innovation in that it created uniform parameters for conferring deferred action. If anything, DACA made the executive branch’s exercise of deferred action fairer. Prosecutors’ offices all over the country similarly standardize eligibility requirements for their diversion programs. These programs are exercises of discretion where the prosecutor determines that full prosecution, even if possible, is neither a good use of resources nor in the public interest. This standardization of the exercise of prosecutorial discretion or deferred action does not amount to legislation by the executive branch.
Yes, DACA was an innovation in the use of deferred action, but it was not without precedent or legal merit. In fact, DACA had survived a challenge in court brought by immigration agents. DACA was a courageous, “big hearted” response to Congress’ legislative and moral failure in fixing the injustices perpetrated against immigrants by our current legal framework. We must now motivate members of Congress to demonstrate their courage and big hearts by passing a bill that recognizes the dignity of and protects the undocumented immigrants among us.
