Last Thursday, in a 4-4 split, the United States Supreme Court upheld a lower court’s injunction blocking implementation of President Obama’s Deferred Action for Parents of Americans (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA+) programs. Yet to be decided is whether the proposed DAPA and DACA+ programs exceeded the constitutional powers of the president. This situation provokes the following thoughts:
First. It should be kept in mind that the judge in Texas who issued the injunction would not have done so if he believed that the states did not have a valid constitutional argument that the president was attempting to exceed his authority. So, a future decision on the merits of the states’ case may be presumed to also go against the president’s action. The same may be said with regard to any appeal process.
Second. The argument that the president was exceeding his constitutional authority may be applied equally to his earlier action in promulgating the 2012 Deferred Action for Childhood Arrivals (DACA) program. That program has already been implemented, so it is too late to prevent it with an injunction. Nevertheless, a basis still exists for challenging the program as unconstitutional.
Third. The power that the president was usurping was the power to set the nation’s immigration policy, and that is constitutionally assigned to the legislative branch. The failure of Congress to act against DACA and DAPA demonstrates a failure of congressional leadership on immigration. That, however, is no excuse for the absence of any serious attempt by Congress to uphold its constitutional responsibilities.
Last. According to the June 24 Washington Post, presumptive Democratic presidential candidate Clinton commented in response to the Supreme Court action, “I believe we are stronger when we embrace immigrants, not denigrate them” Note that this comment ignores any distinction between legal immigrants invited into the country and those who violate the nation’s law by taking up illegal residence. The failure to distinguish between immigrants and illegal aliens is tantamount to endorsing an open border. And, it seems clear that a president who supported an open border would be seen abroad as inviting illegal immigration.