President Trump announced the end of Deferred Action for Childhood Arrivals (DACA) with a six month delay in implementation thus requiring Congress to act — as it should have all along.
At long last, a president is using the power of the presidency to correctly herd, cajole, threaten, urge, lead and browbeat Congress into doing its job. This is the proper function of the chief executive in legislation — not to replace Congress with an executive order as Obama, Bush, and Clinton often did.
It was a presidential aide to Clinton, Paul Begala, who quipped back in July 1998, "Stroke of the pen. Law of the land. Kinda cool." He said this boasting how the Clinton machine was able to simply dictate what it wanted to have happen.
I believe that with President Trump’s action here, this unconstitutional and very troublesome practice is stopping. This is the most noteworthy aspect of the issue and will receive the least amount of near term attention as everyone focuses on the issue’s more sexy aspects of victims, villains and champions.
However, the politics of the matter may leave him more bulletproof than many otherwise may think (or hope). White House Chief of Staff John Kelly observed that he "thinks Congress should have gotten its act together a lot long ago." This is a clear signal from the man who implemented the end of the Deferred Action for Parents of Americans (DAPA) program when he was homeland security chief. Clearly, "process" is at the root of the president’s decision, not "policy."
There are really only two paths for President Trump to have taken on this matter. The first is to do nothing or otherwise affirm the policy. The second is to end it in an orderly fashion before it was found invalid by the courts.
First, if he was to simply wait or even affirm the program (as so many in his own party and all of the Democrats wanted) DACA would have certainly been successfully challenged in court and its suddenness would have resulted in chaos.
The parent program for DACA, DAPA, was suspended by the courts pending further litigation on the presumption of unconstitutionality of the executive action used to implement it. DACA would be on the same track for an identical decision with grave results for a program that actually was implemented.
On the other hand, if he were to act to end the matter immediately he would have just moved the potential chaos to the present — an even worse outcome.
Rather than wait for that chaos, President Trump is leading the nation to an orderly transition of the matter from a presidential "stroke of the pen" to proper legislative action by forcing Congress’s hand. Six months is more than enough time for Congress to generate the appropriate legislative outcome and to get comprehensive immigration reform.
Surprisingly, President Trump has not tipped his hand on what that legislation should look like – not even whether he would support "Dreamers" staying. This is the master negotiator at work. Do not be surprised if the Dreamers are traded for the wall in a comprehensive bill yet to come.
The only real danger to the strategy is that Congress will attach its form of DACA to the Harvey relief bill in an effort to avoid its job once again and get a quick fix to a problem that deserves a more lengthy consideration.
Such a course of action will be fraught with many problems, much opposition and mountains of resentment and disappointment. There is a real desire by all Americans for comprehensive reform and a quick fix like this will not be seen to be the best option even for supporters of DACA.
Congress must act soon to preserve the program (if that is its wish) and the president is right to force them to act. There are several, comprehensive bills moving through both the House and through the Senate already and the subject of the Dreamers would be properly included in any of these measures.
This will be an opportunity for Congress to act and to have the regular order debate that should have been the vehicle for both health care reform and for tax reform.
I am sure that the congressional leadership will "produce" a (K Street-written) bill and insist on its passage. However, the divergent interests of Congress of both parties will overcome that impulse on this occasion and the committees of jurisdiction will have to act. I hope that the committees do not waste time waiting for the leadership bill but begin hearings right away.
It will be a raucous debate and a hard-won victory for any bill, but that is our process and it is a good one. Congress must take up this matter without a top-down solution but a bottom-up solution offered by the membership reflecting the will of the people.
Michael Patrick Flanagan represented the 5th District of Illinois in the historic 104th Congress. Prior to his Congressional Service, Michael was commissioned in the United States Army Field Artillery. Michael and his firm, Flanagan Consulting LLC, have represented both large and small corporations, organizations, and associations. In 2009, Michael entered public service again with the United States Department of State in Iraq as the Senior Rule of Law Advisor on the Maysan Provincial Reconstruction Team (PRT) in Maysan, Iraq. For more of his reports — Click Here Now.
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