President Trump is expected to end DACA, the executive order issued under President Obama to exempt youths brought to this country illegally by their parents from the enforcement of the immigration laws. The president himself has recognized what a tough issue this presents, stating that he is open to maintaining the program. It wrenches the heart to see children, who have often spent years in the United States and who came here through no fault of their own, deported.
There's a saying in the legal profession that bad facts, or hard cases, make bad law. The law often requires a particular result which, given the facts of the case at hand, would work a particularly grievous hardship or injustice. The temptation as a judge to bend the law for the particular case — thereby making precedent for all future cases — is almost irresistible. Yet making the law conform to the extreme or bad facts often makes very bad law for the run of cases.
The same can be said of our constitutional practices. The laws enacted by Congress may seem terribly unjust and terribly bad policy when it comes to the harsh consequences for the "Dreamers" who benefit from DACA. The temptation is therefore very great to conform our constitutional procedures to allow the president unilaterally to suspend these harsh immigration laws. Bad policy therefore risks making bad constitutional law, one might say.
Many liberals, libertarians, and even conservatives believe that enforcing the immigration laws in this context would be harsh and unjust. That may be, and if so, Congress should amend the statute. But the harshness or injustice of the result does not give the president constitutional powers he does not otherwise possess.
The Constitution recognizes only three kinds of power — legislative, executive, and judicial — and vests them in three different branches of government. The Constitution does not recognize a power to suspend the laws. Such a power was claimed by King James I, and Parliament and the common-law judges objected; indeed, the English civil war was fought in part to redress this assertion of power. And our own revolution was justified in part on the ground that King George III had claimed the power to suspend laws enacted by our colonial assemblies.
The DACA program is often analogized to the exercise of prosecutorial discretion. But there is a crucial difference between the two. Prosecutorial discretion implies that the law may always be enforced against a particular individual who violates the law, even if at the moment the executive exercises discretion not to do so. Thus there is always the risk that the laws will be enforced, thereby deterring the unlawful behavior. Suspending the operation of the law entirely against a group of people is a promise never to enforce that law at all.
The president does not have such a power. The president can only execute the laws duly enacted by Congress. It is up to Congress to amend or repeal them and thereby suspend their operation. If DACA is revoked, maybe something good will come of it: Congress can step up to exercise its constitutional powers, after the president will have stepped back to respect the limits of his own.
Ilan Wurman is the author of "A Debt Against the Living: An Introduction to Originalism." A nonresident fellow at the Stanford Constitutional Law Center, he writes primarily on administrative and constitutional law. You can follow him on Twitter @IlanWurman. To read more of his reports — Click Here Now.
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