Imagine a lawyer defending shoplifters, arguing that because his clients were successful in getting the merchandise out of the store undetected, they should be able to keep the stolen goods free and clear.
That’s what 16 Democratic attorneys general are essentially advocating in defending the so-called “Dreamers,” the children of illegal immigrants surreptitiously slipped across our southern border. Like shoplifting, it’s against the law, but because they got in, they should be able to stay.
The top law enforcement officials of 15 states and the District of Columbia on Sept. 6 filed suit in federal court in Brooklyn, New York, seeking to enjoin President Donald Trump from rescinding his predecessor’s unconstitutional DACA executive amnesty.
Their lawsuit, seeking to block the rescission of President Barack Obama’s Deferred Action for Childhood Arrivals amnesty, is a textbook case of “the end justifies the means.” The Constitution can’t be allowed to stand in the way of their policy objectives.
You’ve heard of outcome-based education? This is nothing if not outcome-based adjudication.
Their defense of DACA is based almost entirely on heartstring-tugging stories of the impact that revocation of DACA would have on the estimated 800,000 young illegal immigrants who have received the supposedly “temporary” deferred deportation action under it.
And of course, no reflexive Democratic defense of Obama’s 2012 executive overreach would be complete without the obligatory liberal dog whistle of “racism.” (Never mind that being Hispanic is an ethnicity, and not a race.)
Most disturbingly, what the argument in defense of DACA by these Democratic law enforcement officials lacks is any concern whatsoever for the rule of law or for the (lack of) constitutionality of Obama’s executive amnesty under the separation of powers.
DACA was not, as Obama insisted, “prosecutorial discretion.” The Trump Justice Department correctly characterized it as “an arbitrary circumvention of Congress.”
The attorneys general conveniently ignore the fact that Obama himself had repeatedly insisted he had no constitutional authority to grant the amnesty—until he did it anyway.
“I am president; I am not king. I can’t do these things just by myself,” Obama said on Oct. 25, 2010, one of 22 occasions where he acknowledged he couldn’t unilaterally change U.S. immigration laws.
“[T]here’s a limit to the discretion that I can show, because I am obliged to execute the law. … I can’t just make the laws up by myself.”
On May 10, 2011, he lamented, “Sometimes, when I talk to immigration advocates, they wish I could just bypass Congress and change the law myself. But that’s not how a democracy works.”
Yet, on June 15, 2012, Obama decreed DACA to be the law of the land nonetheless, albeit calling it “a temporary, stopgap measure.” Five years later, it was long past time to put a stop to this unlawful “temporary” measure.
The lawsuit seeking to preserve DACA is all the more egregious because it was filed not by open-borders advocacy groups—from whom you would expect such a frivolous and dilatory lawsuit—but by putative law enforcement officials, who should (and do) know better.
They are shamefully abdicating their duty and responsibility to uphold the Constitution and federal law, and they must be called to account for it.
Virginia voters will have just an opportunity to send that message in November, when one of the plaintiffs, Virginia Attorney General Mark Herring, is up for re-election.
These renegade attorneys general also ignore the fact that the same federal court in Texas that permanently enjoined Obama from expanding DACA with Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) would almost surely have found DACA equally impermissible had it gone to trial.
Twenty-six Republican state attorneys general successfully challenged DAPA, and nine of them had threatened to take DACA to court had the Trump administration not pulled the plug on it by Sept. 5.
Trump had pledged to rescind DACA as part of his campaign platform to crack down on illegal immigration, including the building of a border wall. His vow to reverse Obama’s flagrant disregard of immigration laws was arguably the single biggest reason he won the presidency.
Having made it central to his campaign, Trump should not have waited more than seven months into his administration to discontinue DACA. The vacillation only served to embolden the Democratic attorneys general and other apologists for illegal immigration—who couldn’t care less about DACA’s unconstitutionality—and to give them more time to gin up opposition to rescinding it.
Trump on Sept. 5 gave Congress six months to consider codifying some form of DACA legislatively (and constitutionally), but GOP lawmakers should not fall prey to emotional appeals. Now is “no time to go wobbly,” to borrow a line from then-British Prime Minister Margaret Thatcher.
Republicans should realize they hold all the cards and must not deal them away in the face of the intense pressure of emotional appeals from Democrats and their open-borders allies, the media, and the cheap-labor business lobby. Their demands for a “clean” Dream Act must be rejected.
No retroactive legalization of DACA by the legislative branch should pass without provisions making it clear that it doesn’t carry with it a path to citizenship or authorize any chain migration.
It must also make E-Verify mandatory for all employers (it’s now voluntary) and include full funding for Trump’s border wall.
The lawsuit by the Democratic attorneys general notwithstanding, national sovereignty—and the rule of law—demand no less.