Trump could have said that he was giving Congress only three months, or he could have given them six years, or any other arbitrary amount of time. My point there was not in the first instance a constitutional argument but simply a recognition of a puzzling question. In a column last month, I noted the oddity of Trump’s decision to wait six months to shut down the program: “Although his reason for extending it might have been defensible (giving Congress time to react), there was no effort at all to explain why it was acceptable to continue to violate the Constitution for six more months.” Trump then expressed support for allowing the Dreamers to stay in their country and gave Congress six months to “do it right,” that is, give Dreamers legal status via legislation rather than executive order. They argued, as the Supreme Court might well have held if Antonin Scalia were still alive when the Court ruled on the case, that a president has no option but to end what they assert is a blatantly unconstitutional action. The extremists who advise Trump on immigration issues claim that the DACA program is an unconstitutional exercise of executive power. Is his delay evidence of bad faith? Even more provocatively, does that delay change the constitutional calculus? The Executive’s Options in the DACA Debate Indeed, Trump’s delay in ending DACA raises an important question about his sincerity in saying that the program is unconstitutional. Interestingly, however, it is also possible that Trump’s legal arguments should have forced him to end the program immediately. The surprisingly simple answer is that Trump himself could resolve the problem that he created. The question is what Trump and Congress can do now. Last September, Donald Trump announced that he would end DACA in six months, a deadline that now looms. Their court challenge to a companion program for Dreamers’ family members succeeded, but their challenge to the Dreamers program (formally Deferred Action for Childhood Arrivals, or DACA) was never resolved by the Supreme Court. Obama was, in fact, otherwise extremely aggressive in his deportation efforts, so aggressive in fact that he earned the derisive nickname “deporter-in-chief” by immigration advocates.īut Obama did take the humane and sensible step of trying to let the Dreamers know that they were not being targeted, allowing them to continue to make long-term decisions like attending college and graduate school, buying homes, and so on.īecause it was Obama who took that action, Republicans decided that it was per se unacceptable, and they immediately attacked his “dictatorial” action. Why is this happening? Much of the story is well known, but it is important to recall the key steps that have set this impending tragedy in motion.Īfter Congress failed to pass a bill to reform the immigration system during his presidency, Barack Obama decided to exercise his prosecutorial discretion to deport only people who posed an arguable danger to the country. In a few short weeks, however, Donald Trump is apparently going to instruct federal agents to begin deporting these innocent people. The clock is ticking for the “Dreamers,” the Americans-in-fact who were illegally brought into the United States as children, who have built lives here, and who have every reason to want to stay and continue to contribute to their country.
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