by Ken Paxton
If DACA is to remain intact, it must be issued through the lawmaking process in Congress, not by the executive power of the president.
Recently, I led a 10-state coalition asking President Trump to rescind the Obama Administration’s 2012 Deferred Action for Childhood Arrivals (DACA) program. I did so because the program represents an unconstitutional exercise of legislative power by the Executive Branch.
While in office, President Barack Obama repeatedly exhorted Congress to pass the DREAM Act, which would generally allow unlawfully present aliens who entered the country before age 16 to apply for lawful status. But Congress repeatedly refused, so Obama bypassed the legislature and unilaterally hatched DACA.
DACA has far-reaching implications, granting a renewable two-year term of lawful presence and work authorization for unlawfully present aliens who entered the country at least five years before DACA’s promulgation, arrived before age 16 and were 30 or younger as of DACA’s promulgation in June 2012.
DACA is similar to the Obama-era memo that created the Deferred Action for Parents of Americans (DAPA) program in 2014, which also tried to bypass Congress and unilaterally confer lawful presence and work authorization on millions of unlawfully present aliens. But DAPA was blocked by the courts after Texas led a multi-state coalition challenging its constitutionality all the way to the U.S. Supreme Court.
The Department of Homeland Security finally revoked the 2014 DAPA program last month, but stated that the 2012 DACA program and some permits issued under the 2014 program would remain in effect.
Phasing out DACA is about the rule of law, not the wisdom of any particular immigration policy. Our nation was founded on the revolutionary idea we now call the separation of powers. Constitutional governmental authority should be separated into three distinct branches — the Legislative to make the laws, the Executive to execute those laws and the Judicial to interpret them — to protect the nation from becoming the monarchy from which our forefathers sacrificed their lives to claim independence. Consolidation of power meant tyranny, the very opposite concept of the foundational principles set forth by our Constitution.
Obama knew this. Early in his second term, he explained of immigration reform, “I’m not a king . . . If this was an issue that I could do unilaterally I would have done it a long time ago.” But he explained that “the way our system works is Congress has to pass legislation. I then get an opportunity to sign it and implement it.” It’s a shame he ignored his own advice.
If DACA is to remain intact, it must be issued through the lawmaking process in Congress, not by the executive power of the president. We’ve given the Trump Administration until September 5 to agree to phase out DACA. Otherwise, our lawsuit challenging unlawful deferred-action programs currently pending in district court will be amended to challenge the renewal or issuance of any new DACA permits in the future. Once again, our request does not call on the Executive Branch to alter immigration enforcement priorities or remove any unlawfully present aliens.
While some have claimed that the Trump administration has sent mixed signals on DACA, there is no doubt that the President believes in rule of law. Last year, when a Texas-led lawsuit of 26 states culminated in the U.S. Supreme Court blocking Obama’s unilateral immigration policies, including DAPA, then-candidate Trump said in a statement: “Today’s 4-4 Supreme Court ruling has blocked one of the most unconstitutional actions ever undertaken by a President.” He promised in his speechannouncing his candidacy that once in office he would “immediately terminate President Obama’s illegal executive order on immigration.”
As attorney general of Texas, I urge Trump to fulfill his campaign promise and make our nation safer by enforcing federal immigration laws.
Ken Paxton is the attorney general of Texas. Follow him on Twitter: @KenPaxtonTX
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