DACA decision highlights the allure – and pitfalls – of executive authority

When Congress fails to act, presidents often take matters into their own hands. But there's a catch: Executive actions can be easily overturned by the next president.

Carolyn Kaster/AP
A rally supporting Deferred Action for Childhood Arrivals, or DACA, outside the White House in Washington, Monday, Sept. 4, 2017. The next day, President Trump rescinded DACA, an Obama-era executive order.

President Trump has spent his first months in office laying waste to key elements of President Barack Obama’s legacy.

He abandoned the Trans-Pacific Partnership, Mr. Obama’s signature trade deal, and announced the United States withdrawal from the Paris climate accord. Gone, too, is the ability of openly transgender people to join the US military.

And in perhaps his most explosive decision of all, Mr. Trump this week announced the end of DACA – Deferred Action for Childhood Arrivals, the 2012 Obama maneuver that has shielded nearly 800,000 undocumented young adults from deportation and allowed them to work.

“It seems like his main agenda is to undo everything Obama did,” quipped late-night host Jimmy Kimmel. “I hope he doesn’t bring bin Laden back to life.”

All joking aside, Trump’s aggressive use of the executive authority granted American presidents is hardly unusual. Obama himself was accused of being an “imperial president,” just as he had accused his predecessor, George W. Bush, of regularly circumventing Congress. Richard Nixon, Harry Truman, and Franklin Delano Roosevelt were all parties to famous Supreme Court cases involving presidential actions.

Unilateral decisions

But the Trump presidency presents a unique proposition. After decades in business, Trump entered the Oval Office with no experience in government, and the mindset of a CEO.

“Trump is a businessman who is accustomed to making unilateral decisions,” says Jonathan Turley, a professor at George Washington University Law School and a scholar on presidential executive power. “It can be an irresistible temptation to dash off executive orders, when you grow impatient with the pace of change.”

Trump’s “travel ban,” an executive order that bars citizens of six predominantly Muslim countries from entering the US, shows that he’s about more than just undoing the Obama legacy. He’s also about enacting his own agenda – fast. The first version, which was issued just a week into his presidency and sowed disarray at airports around the world, was redone in March. The Supreme Court will hear arguments on the ban in October.

But as with many things Trump, his approach to executive power isn’t so simple. He rescinded DACA, and gave Congress a six-month window to come up with a solution – to some constitutional scholars, like Professor Turley, the appropriate venue for immigration reform in the first place.

Then within hours, Trump threw out a curve ball, tweeting that if Congress failed to “legalize DACA,” he would “revisit” the issue. And in a further twist, he struck a surprise agreement Wednesday with congressional Democrats – a three-month deal to fund the government, raise the debt ceiling, and fund hurricane relief. This sudden comity with the opposition party suggested the possibility that he and the Democrats could work together on DACA.

Another headline this week suggested a different sort of Trump – one who might indeed have a use for Congress after all, after failing to pass any major legislation since taking office. The issue is the Iran nuclear deal, which Trump opposes, but has not formally rejected. In a speech this week, Nikki Haley, the US ambassador to the United Nations, suggested the Trump administration may let Congress decide whether to quit the deal.

Congress slow to act

Five years ago, when Obama announced DACA, the program was meant to be temporary – a reprieve for young undocumented immigrants who had been brought into the US as children and who met certain conditions, such as a clean legal record. Congress was supposed to fix the problem with legislation.

But Congress never did. In fact, the first bill aiming to help young illegal immigrants was introduced back in 2001, the so-called DREAM Act. It would grant conditional residency, and eventually, possible legal status. Critics called it “amnesty.”

DACA never conferred legal status, just the ability to stay in the US without fear of deportation, and with the legal ability to work or go to school. Recipients of DACA status gained access to Social Security cards and driver’s licenses.

For beneficiaries, DACA was a godsend, and to opponents, an abomination – an abuse by Obama of a president’s constitutional authority.

Professor Turley asserts that it is Congress’s place to enact immigration reform, but he understands why Obama took action.

“We’ve seen a concentration of power in the executive branch and the rise of an uber-presidency,” says Turley. “It’s a result of failures by both the legislative and judicial branches. Congress has been almost eager to surrender its role in government.”

When should a president step in?

But if Congress fails to pass legislation on immigration, as it has for 16 years, is it ever right for a president to step in and address the stalemate?

Scholars disagree. Turley thinks not. Others suggest it may not be wholly inappropriate, as a stopgap. But stopgaps, by definition, don’t represent a permanent solution, and can be thrown out in court. That’s what happened with the followup to DACA known as DAPA, or Deferred Action for Parents of Americans, another Obama measure that granted temporary relief from deportation for the illegal immigrant parents of American citizens and lawful permanent residents.

Last year, a deadlock in the Supreme Court effectively blocked DAPA. By reaching a tie vote, 4-4, the lower court ruling against the plan held.

“That’s always one of the weaknesses of moving forward unilaterally, as opposed to legislatively,” says Matthew Dickinson, an expert on presidential power at Middlebury College in Vermont. “Executive actions serve a very useful purpose for presidential power. You can issue them unilaterally and quickly. The drawback is durability.”

Obama reacted harshly to Trump’s decision to rescind DACA and send the issue to the hands of a Congress he has called “dysfunctional.” In fact, a month before Obama left office, he offered some advice to his successor: Go easy on the use of executive power.

“Going through the legislative process is always better,” President Obama told NPR, “in part because it's harder to undo.” 

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