In response to the Trump administration’s decision to phase out the Deferred Action for Childhood Arrivals (DACA) program beginning next March, Texas and nine other states agreed not to file a lawsuit challenging the constitutionality of the program. Just a few days ago that lawsuit seemed moot, but just as suddenly, it’s not.
No sooner had Texas dropped its suit, a coalition of 15 states and the District of Columbia announced their own lawsuit seeking to prevent the Trump administration from ending DACA. As absurd as it might seem, the Gang of Sixteen is arguing that it is unconstitutional for the current president to terminate an unconstitutional policy implemented by a previous president.
To be clear, DACA was an administration policy (not a law, or even an executive order) created an implemented by President Obama. Not only is it merely a policy, it is one that stands on “shaky legal ground” in the view of none other than Senator Dianne Feinstein, the second ranking Democrat on the Senate Judiciary Committee, and one that President Obama called “temporary.”
Presidents do not have the authority to change laws (although that is exactly what President Obama said he did after implementing DACA in 2012). They do have the authority to change policies, which is kind of what elections are all about. As Obama noted in the months leading up to the announcement of DACA, while he was still claiming (correctly) that he did not have the authority to grant blanket immunity from deportation, “I am not the emperor of the United States.” He may have changed his mind about that a few months later, but he certainly is not a pope whose policy encyclicals are binding on future pontiffs.
Nevertheless, at a moment in history when the judiciary is as politically polarized as the rest of the nation, it is highly likely that the Gang of Sixteen will find a sympathetic judge who will issue an injunction barring President Trump from ending the previous administration’s policy and carrying out his own policy. It is almost inconceivable that such a ruling would not eventually be reversed by the Supreme Court. But that is not the point. The objective of the plaintiffs is to see if they can run out the clock on President Trump’s term in office before he has a chance to implement his policy.
The best strategy may be to fight fire with fire. Texas Attorney General Ken Paxton has his lawsuit sitting on his desk ready to go. If the Gang of Sixteen is intent on moving forward with its frivolous suit, then the need to test the constitutionality of DACA – which seemed to be a pointless exercise just a few days ago – is suddenly more urgent than ever. Bring it on.