If Congress Had Any Pride, It Would Set Immigration Policy

By Will, George | Pittsburgh Post-Gazette (Pittsburgh, PA), November 9, 2019 | Go to article overview

If Congress Had Any Pride, It Would Set Immigration Policy


Will, George, Pittsburgh Post-Gazette (Pittsburgh, PA)


When an obviously humane and demonstrably popular policy is implemented by a seriously flawed process, the Supreme Court must do its counter-majoritarian duty. It must insist that not even an admirable social end, supported by a national majority, justifies constitutionally dubious means. This describes the drama that will unfold Tuesday when the court hears oral arguments concerning Deferred Action for Childhood Arrivals.

This pertains to the almost 800,000 so-called Dreamers in our midst, people who were under age 16 when brought to America by parents who were not lawfully residents. Congress has long been unable to address the Dreamers' status by protecting them from the manifestly unjust threat of deportation from the only country they have known.

Barack Obama's exasperation with the separation of powers, and with the existence of Congress, was even more pronounced than is normal among presidents, especially progressive ones. So he did what he had repeatedly said he lacked the power to do: He made available to these children temporary but renewable legal status and work authorization. He called this an exercise of "prosecutorial discretion." This was somewhat novel in the size of the class of individuals affected, and in affirming a right to work and other federal benefits.

When President Donald Trump rescinded DACA, he denounced it as "an end-run around Congress" that was "unconstitutional" and his attorney general said it was "effectuated ... without proper statutory authority." Never mind the impertinence of this from a president who has declared an "emergency" in order to spend on a border wall money that Congress appropriated for other purposes.

The 9th U.S. Circuit Court of Appeals, which is often in error but never in doubt, acknowledged that presidents have considerable power to undo policies put in place by executive actions of prior administrations. But the court held that the administration's reasons for rescinding DACA were arbitrary and capricious and hence violated the Administrative Procedure Act.

A brief from Ilya Shapiro and Josh Blackman (who favor DACA as policy) for the Cato Institute argues that Mr. Obama's action went beyond "constitutionally-authorized executive power." Such power is not enlarged "when Congress refuses to act, no matter how unjustified the congressional inaction is. …

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If Congress Had Any Pride, It Would Set Immigration Policy
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