DACA: An Actual Abuse of Power

December 12, 2019

By Lew Jan Olowski

The president abused his power, causing a constitutional crisis. Rather than enforce the law—as the Constitution required him to—he effectively invited foreigners to break the law under a quid pro quo. He even admitted his behavior was illegal and unconstitutional. Now, the Supreme Court has a chance to stop him.

This has nothing to do with Russia or Ukraine. It’s about an “abuse of power” by President Barack Obama.

Recently, the Supreme Court heard a case about an executive program that created privileges for certain foreigners who illegally entered the United States. It insulates them from law enforcement—and even grants them illegal benefits in exchange for money.This program is called Deferred Action for Childhood Arrivals or “DACA.”

Through DACA, President Obama usurped Congress’ legislative power. Solely by executive order, he implemented a program that Congress rejected dozens of times, and he refused to enforce immigration laws that Congress actually passed into law. In other words, President Obama “abused the powers of the Presidency” and “assumed to himself functions and judgments … vested by the Constitution in Congress.”

The same two articles of impeachment now launched against President Trump over his phone call with Ukraine.

For years, President Obama admitted he could not exempt illegal aliens from immigration law, let alone sell such indulgences. “I am not king,” he said in 2010. He also said he could not “just bypass Congress and change the law.” “That’s not how a democracy works,” he added.

Nevertheless, with a pen and a phone, he persisted.

During his reelection campaign, the former president pandered to immigration activists and created DACA: a federal program excusing certain illegal aliens from laws the president of the United States is obligated to enforce. In exchange for a $500 fee, individuals who allege they illegally entered the United States when they were minors—despite their presence in the United States still being illegal—are exempt from immigration law enforcement. Under Obama’s plan, they were even granted benefits, including the opportunity to compete against U.S. citizens and lawful aliens for employment and education.

Congress never approved such benefits; to the contrary, current law requires the President to deport illegal aliens. Congress has had plenty of opportunity to pass the DACA-like DREAM Act (“Development, Relief, and Education for Alien Minors” Act); instead, it rejected it dozens of times.

Rather than accept the will of Congress, President Obama bucked federal law. His DACA memorandum described itself as an exercise of “prosecutorial discretion,” but it did not merely de-prioritize deportations for some DACA-eligible illegal aliens. DACA worked across-the-board, and went as far as to award employment authorization documents to deportable aliens, even though their presence in the United States is illegal. Since DACA was launched, it has issued or renewed more than 2 million such work permits to more than 800,000 individuals. Perversely, a single district-court judge forced President Trump to continue this Obama-era program for years after activists sued to stop its repeal.

Naming DACA participants “Dreamers” obscures their illegal status.

Dreamers are labeled and benefited under a bill Congress never passed, and the president never signed into law. Either paying lip service to the Constitution or just mocking it, President Obama’s DACA policy memorandum affirms that, “Only the Congress, acting through its legislative authority, can confer [immigration] rights.”

Worse, DACA does not merely defer deportation. It effectively absolves aliens who already had their day in court and were issued orders of removal. DACA even solicits applications from convicted criminals who have been issued a final order of removal as a criminal alien. Not surprisingly, a recent report shows that tens of thousands of DACA recipients have arrest records. About 5,000 were released from detention and granted DACA benefits even after being “considered a public safety threat” by the Obama administration.

DACA is exploited by more than just illegal aliens and political activists. The world’s largest and most powerful corporations use DACA to avoid hiring American citizens. Giants like Amazon, Apple, Facebook, and Google are lobbying the Supreme Court to rubber-stamp the program. Otherwise, they fear, “companies will face an estimated $6.3 billion in costs to replace Dreamers”—conceding that this would go toward “recruiting, hiring, and training 720,000 new employees” who are either U.S. citizens or lawful aliens.

Regardless of DACA’s illegality, the program’s practical effects are worse than the problems it purports to solve. DACA may have hurt more children than it helped. The promise of amnesty lured thousands of unaccompanied minors into trekking across the desert and illegally entering the United States. Human traffickers even advertised their services on Central American media. Consequently, many migrants died along the journey—or were raped, murdered, and otherwise victimized by smugglers.

Within months of DACA’s announcement, unaccompanied minors began overwhelming the United States’ ability to protect its borders. By 2015, this surge caused the United States to experience the world’s highest rate of child detentions, resulting in photographs of “kids in cages” detained under President Obama. By 2018, rhetoric about border authorities “separating families” led to accusations by anti-borders activists that the United States was committing a 21st-century holocaust. Some politicians even likened illegal alien detention centers to concentration camps.

Rallying around this libel, by 2019, domestic terrorists began attacking U.S. government facilities, even targeting law enforcement officers themselves.

Unfortunately, President Trump has been stymied at every turn when he’s attempted to use lesser presidential powers to resolve this crisis.

When he invoked Congress’ National Emergencies Act to fundborder wall construction, his political opponents sued. When he merely tried adding a question about citizenship to the U.S. census, activists sued over that, too. And when he repealed DACA because a federal appeals court found a similar Obama-era presidential program was also illegal (DAPA, “Deferred Action for Parents of Americans”), special interests sued again.

The success of these lawsuits hinges upon a few judges’ eagerness to undermine President Trump and dictate nationwide policy themselves: for example, by ordering President Trump to continue DACA.

Ironically, though, President Trump’s position against DACA represents a modest approach to the powers of the Presidency. If the Supreme Court sides with Trump to repeal DACA, then this precedent will constrain future presidents’ attempts at similar diktats. On the other hand, if the Court joins President Trump’s opponents and elevates DACA above the president’s authority to repeal it, then the Court will have frustrated President Trump for a day while empowering him and his successors for many years to come.

With his own version of a DACA-like memorandum—imagine “Deferred Action for Taxpaying Americans” or “Deferred Action for Firearms Users”—President Trump could exempt his own preferred classes of people from law enforcement and even give them brand-new benefits. Then his beneficiaries could tie the next president down in court when that future president tries to repeal it.

But no matter whether the president’s name is Trump or Obama, he is only authorized to enforce laws, not invent them

Lew Jan Olowski is staff counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of illegal migration.

Also published at: Lew J. Olowski, DACA: An Actual Abuse of Power, Human Events, December 12, 2019.