Trump, DACA and curtailing executive overreach
Eddie Damstra | Thursday, September 14, 2017
I wholeheartedly agree with President Trump’s decision to give Congress a six-month window to draft and pass a replacement to President Obama’s unilaterally and unconstitutionally implemented DACA program. While I do not think that the Dreamers should be deported, I do think that executive overreach should be squelched. Motions to grant amnesty to large sums of people should not be enacted by a single executive, but rather should be debated on and ultimately decided on by the legislative branch, the branch most closely representative of the American people.
The executive branch has grown far too strong over the past few decades. Even as a fan of George W. Bush, I am very disappointed with the role he played in expanding the power of the executive, especially after claiming to be a champion of limited government. Through many executive orders, George W. Bush expanded the prerogative powers of the executive branch, especially in regard to foreign policy.
Similarly, President Obama grossly augmented executive power. Obama, however, excessively utilized presidential memoranda in addition to executive orders. Memoranda also do not require congressional approval and have essentially the same practical effect as executive orders. The only difference is that memoranda are not required to be filed in the Federal Registry, and thus, there is less transparency with memoranda than with executive orders. In addition to his nearly 300 executive orders, President Obama published over 250 of such presidential memoranda, nearly double the amount of President Bush. That is only the number registered, and it is very likely that many more of such memoranda were enacted.
President Obama’s many instances of executive overreach went without much criticism from the general public and mainstream media, but they nonetheless normalized and, to a degree, institutionalized the notion of an extremely powerful executive branch. President Obama’s DACA executive order is just one of many examples of such overreaches.
President Trump’s DACA policy is not, at its core, about deportations or illegal immigration. At its very core, Trump’s DACA policy is about rescinding executive overreach. Even further, it is about curtailing unconstitutional executive behavior.
President Obama’s DACA executive order was unconstitutional. You can argue that I am wrong, but you would also be arguing against President Obama himself. In 2010, when many were upset at the lack of immigration reform being passed, Obama responded by saying, “I am not king. I can’t do these things just by myself.” He addressed the issue even more explicitly when he said: “[In] respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” In 2011, he went on to say that he cannot “just bypass Congress and change the law [himself]. … That’s not how a democracy works.” President Obama was absolutely correct. That is not how a democracy works; more specifically, that is not how a constitutional republic works.
The claim that Obama’s policy of unilaterally implementing suspended deportations and broad amnesty is unconstitutional has been consistently backed up by the United States court system. In 2014, President Obama tried to implement a similar program called Deferred Action for Parents of Americans. This program was similar to DACA in that it granted amnesty to certain illegal immigrants and allowed such individuals to receive employment opportunities and some government benefits. This program, however, was struck down via an injunction upheld by the Fifth Circuit Court of Appeals. The decision ultimately went to the Supreme Court, which upheld the Fifth Circuit Court’s ruling.
Many people argue that if DACA ever saw the time of day in a federal courthouse, it likely would be struck down on constitutional grounds just as Obama’s 2014 program was. This is because immigration concerns are supposed to be left to the legislative branch. Congress has absolute control over immigration laws, and has never delegated such power to the executive branch. Therefore, President Obama acted not only irresponsibly, but also unconstitutionally.
Personally, I am rather libertarian on immigration. I do not support a border wall, mass deportations or any other more extreme immigration measures. However, I do support checks and balances of power and the constitutional framework of our nation. I hope that Congress is able to pass an immigration bill that grants amnesty to the Dreamers. However, I believe it is absolutely critical that such legislation comes to fruition through the process that our Constitution requires, and not via broad executive overreach.
The Founders were very prudent in limiting the power of the executive. They restricted the power of the executive because they were fearful the president could transform into an authoritarian. Many in the United States today, especially under the current administration, seem to share this same fear as the Founders. I see posts every day on social media in which people express genuine fear about what actions Donald Trump may unilaterally implement. Some people even fear he may become a tyrant. While I believe these stated fears are melodramatic and rather ludicrous, people nonetheless claim to possess them. These same people, ironically, are also expressing distress and anger over the president reeling back the very ability for the executive to act in such a unilateral and tyrannical fashion. If you truly do fear that Trump may act as an authoritarian, you should welcome his rejection of executive overreach and his commitment to restore constitutional checks and balances.
I certainly do not think President Trump has done everything in his power to curtail executive overreach, and there are certainly areas where he has succumbed to the same errors as his immediate predecessors. However, his position on DACA has proved to be a promising step towards restoring the constitutional order of this great republic. Appeals to emotion and claims of morality do not justify unconstitutional executive overreach. Thankfully, President Trump realizes this and has acted accordingly in deciding to return issues of immigration over to Congress, just as the very Founders of this country intended.
The views expressed in this column are those of the author and not necessarily those of The Observer.