WHAT’S WRONG WITH DACA

Quick question: What is it that makes the USA distinct from a banana republic dictatorship? Simple: We have the rule of law. We have a process for how we enact new laws, and everyone has to play by the rules.

On at least 19 occasions (depending on how you count), President Obama insisted that he didn’t have the authority to rewrite immigration law without an act of Congress. In spite of this deeply held conviction, his administration enacted the Deferred Action for Childhood Arrivals policy in 2012. Under this program, hundreds of thousands of illegal aliens were shielded from deportation if they arrived in the country as children. 

But there’s a problem with DACA. 

In this country, we have several levels of laws:

First, we have constitutional law, the supreme law of the land. (Article 1, which assigns legislative authority to the Congress, is an example of a constitutional law.)

Second, we have statute laws, which are those enacted in the ordinary course of congressional action. (The Clean Air Act of 1963, which regulates automotive exhausts, is an example of a statute.) 

(The following are not laws, exactly, but they have the force of law.)

Third, we have what’s called case law, which is rooted in far-reaching court verdicts. (Plessy vs. Ferguson, which upheld racial segregation in public schools, is an example of case law.)

Fourth, there are executive orders, the personal directives of the president. (The Emancipation Proclamation, issued by President Lincoln in 1863, is an example of an executive order.)

Fifth and finally, there are agency rules. When Congress created the Food and Drug Administration, they empowered this agency to regulate drug companies. (With this authority, the FDA can enact rules to determine how new drugs are approved.)

So where did DACA come from? None of these. Rather, the Secretary of Homeland Security simply issued a memorandum to agency staff. From henceforth, we will do it this way. 

Upon assuming office in 2017, President Trump vowed to end the DACA program. Surely, a unilateral action by one cabinet secretary could easily be undone by her successor. After all, they are endowed with precisely the same level of authority. Yes? What could possibly go wrong? 

Well, it wasn’t so simple. 

A couple of months ago, the Supreme Court placed a roadblock in the president’s plans. Writing for the majority, Chief Justice John Roberts offered no opinion as to whether DACA is a sound policy. Instead, he argued that the administration failed to follow the proper procedure to roll back an agency rule.

The problem with this opinion, of course, is that DACA was not born of an agency rule. It followed no known process, and did not receive any type of external review. Instead, Secretary Napolitano’s memo simply instructed her staff to disregard the agency’s own rules. (And, for that matter, the statutes passed by Congress and ratified by previous presidents.) 

As case law, DHS v. University of California brings a dangerous precedent. It sets a double standard for how we rule our country; one side has to follow rules, while the other doesn’t. No matter what you think of DACA, or of President Trump, this is bad news for the rule of law in the United States of America.

If we lose the rule of law, we lose everything.