Contributors

Obama and Trump are both right on DACA

Who is right about the constitutionality of the presidential decisions to create and then destroy the Deferred Action for Childhood Arrivals program - Trump or Obama?

The answer is both.

Early this week, Attorney General Jeff Sessions formally announced "that the program known as DACA that was effectuated under the Obama administration is being rescinded." He went on to condemn DACA - which offers temporary legal status to 800,000 undocumented individuals who arrived in the United States as children - as "an unconstitutional exercise of authority by the Executive Branch."

In a rare public reaction to Trump administration policy, President Obama defended DACA as "based on the well-established legal principle of prosecutorial discretion, deployed by Democratic and Republican presidents alike."

Setting aside the very serious moral and ethical debate about President Trump's decision to scrap DACA, let's clear up a foundational legal question. Obama's DACA policy was - in all likelihood - constitutional as a matter of his Article II authority for the same reasons that Trump's decision to rescind DACA was constitutional. The long version of the "why" story is legally complex. Suffice it to say that the Constitution and Congress together gave the Executive Office of the President the power to "make or break" things like DACA, and the Supreme Court has, for the most part, upheld the exercise of that kind of power many times.

To break it down further, consider Sessions' reason for attacking DACA's constitutional legitimacy. Essentially, he argued that DACA was an unlawful power-grab by Obama - that he took legislative power from Congress and gave it to himself. Obama's constitutional job was strictly to execute the laws, not make them.

In defense, Obama responded that he was not exercising legislative power - he was exercising executive power. The pinnacle of executive-type power is that of the prosecutor. Prosecutors execute the laws passed by the legislature. As a practical matter, they cannot prosecute every jaywalker and marijuana seller and heroin dealer for each and every transaction that violates the law.

Prosecutors pick and choose.

Remember President Nixon's "war on drugs," which President Reagan took to a new level? It was an executive branch decision to prioritize the prosecution of federal drug crimes over other types of crimes. Presidents get to do that -Obama and Trump included.

All of this begs the following question: What is the difference between making laws and executing them? This query seems simple, but it is virtually impossible to fully answer within the weeds of constitutional law.

Simply put, a law is a proclamation that affects large populations of people or entities in the future. An example: "From here on, it is illegal to give someone the stink-eye on the subway." Of course, this law is hypothetical and ridiculous. But the point is that lawmaking can affect future conduct but not past conduct. It can bind "stink-eyers" going forward, but a piece of legislation cannot single out any individual or make past behavior retroactively illegal.

Law execution, by contrast, does single out individuals and past behavior. At its barest bones, law execution is what most people know as law enforcement. After the "stink-eye" law is passed, metro police will identify who broke it, arrest that person, and then hand the matter off to a prosecutor to bring a case against that person in a court - to execute the criminal laws. Even for non-criminal laws, the Supreme Court has held that the executive branch's decision whether or not to enforce a law is virtually sacrosanct. It is very tough to challenge in court.

With DACA, Obama basically told immigration police and prosecutors not to go after individuals who came to America as kids if their cases meet certain criteria. He also directed government officials to decide whether certain individuals qualify for work permits. Trump made the opposite decision. Both men were probably fully within their constitutional power in doing so.

Some argue that the work permit aspect of DACA altered immigration laws (by sanctioning work by undocumented people), thus trampling on Congress's legislative power. But Congress gives agencies the power to make laws all the time. Back in the 1940s, it passed an umbrella statute that tells courts how to review the laws that agencies make. We call those laws "rules and regulations." So long as agencies stay within the statutory lines drawn by Congress, the Supreme Court has repeatedly upheld the president's power to make laws this way. The president also makes laws by executive orders (but that's a topic for another day).

Obama and Sessions are both correct in one respect: the constitutional finger points directly at Congress here. Obama acted because Congress didn't. And Sessions is calling his former colleagues' bluff. He is saying that if the country wants undocumented children to stay, Congress has to do it - this president is not taking his foot off the gas pedal. He is fully executing the immigration laws against anybody and everybody.

On DACA and other important issues that fall squarely in its lap, Congress has shamefully passed off the political hot potato (most prominently to Special Counsel Robert Mueller) rather than seize its constitutional ship at the helm. Both Republicans and Democrats should urge Congress to stop the madness and do its job. As Obama put it, if we the people are ever to "secure our most cherished values for the next generation," Congress is the only branch that can do it for keeps.

Kimberly Wehle is a professor of law at the University of Baltimore School of Law, former assistant United States attorney, former associate independent counsel in the Whitewater Investigation and author of the forthcoming book, "The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy."

The views expressed by contributors are their own and are not the views of The Hill.

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