If you listen to NBC News (and several other outlets), the President has hatched a diabolical new top-secret plan to eliminate DACA and boot all of those lovable “Dreamers” out of the country once and for all. This comes as something of a surprise since the only things keeping DACA afloat at the moment are a couple of court injunctions, and upcoming congressional action may make the entire question moot anyway. But be that as it may, let’s examine this scheme. Take it away, NBC.
In a motion filed late Friday, Justice Department lawyers asked a judge in Texas to rule that the program violates federal immigration law. Assuming, as expected, that the judge grants the request and orders the government to stop enforcing DACA, the ruling would conflict with orders from two other federal courts that require continued enforcement of the program.
If faced with competing court orders, the Justice Department said it would then rush to the U.S. Supreme Court and tell the justices that the government would be in violation no matter what it did — keeping DACA going would violate the Texas order, while trying to shut it down would violate the other court orders.
In that event, the government would ask the Supreme Court to put a hold on all the lower court rulings. And if the justices agreed, the Trump administration would be free to shut DACA down immediately, because nothing would be in effect to prevent the government from taking that action.
The funny part of this story is that the end result could, at least in theory, be precisely what the report predicts. Judges in California and New York have ruled that the government needs to continue accepting DACA renewal requests. If a judge in Texas rules that the program itself is illegal, then the White House is left between a rock and a hard place. Whether they end the program or continue accepting renewals they will be in violation of a court order. That could certainly compel the Supreme Court to act quickly and either put the entire thing on hold or rule on the legality of the program and whether or not the President has the authority to end it. (Spoiler alert: that’s probably not going to end well for DACA advocates.)
But what’s the actual motivation for the Department of Justice in doing this? The White House (along with most conservatives) has been arguing that DACA was either illegal to begin with or it fell under the discretion of the executive branch to modify or end it at the president’s discretion. Taking a fresh run at that question with a court in Texas is a logical step in attempting to prove that point. And if Congress can get off their butts and actually pass an immigration bill for the President to sign, the executive order ceases to have any real meaning anyway. That’s what Trump has been pushing for since he made the initial announcement.
Personally, I’ve never seen much merit in the argument that Obama wasn’t able to institute DACA unless we want to dig deeper and place some sort of limit on executive power as wielded through such orders. (And who wants to do that, amirite?) The more compelling case to make here is to simply say that if a president can create such a program in an extra-legislative fashion with the stroke of a pen, a subsequent president can modify or terminate it the same way. And you can call me a sentimental fool if you wish, but I predict that the Supreme Court would see it the same way.