On Tuesday night, a Federal court judge appointed by Bill Clinton made a ruling in regard to President Trump's announced plan for the termination of the Deferred Action on Childhood Arrivals program. The president, as you recall, had announced that the DACA program would end in March, effectively declaring that the program was an executive overreach.
You see, DACA is not a law passed by Congress, the people who make laws. It was implemented as an executive order by the happily-former president, Barack Obama. President Trump is perfectly fine with having the DACA folks, now mostly in their 20s, have a route to legalization. He is not fine, though, and I am not either, with presidents making law.
Accordingly, he announced an executive order ending the program by March, with the overtly stated expectation that if Congress wanted to make DACA law, it would do so by then.
So I need some help on this from you, because I don't expect the judge to explain it.
Barack Obama issued the executive order creating the program within the Department of Homeland Security in the first place, because he wanted it and Congress would not pass it. Whether or not you think he had the right to do so, well, that is another story. But it was done by an executive order, not by law.
Donald Trump announced the planned end to DACA in an executive order, same as Obama did in creating it. Obama took one step, and Trump used the same step to end it.
So how, please tell me, can a Federal court judge (Ninth Circuit, of course) make a ruling that the actions of President Trump in ending the program are legally any different from Obama's in starting it? I am not a lawyer, I don't play one on TV and never have on stage, I think. But if President X orders something and President X+1 ends it through the same action, how can a court rule that X+1 was not equally, legally justified (or not) in doing so?
If an executive order is not legal, it is not legal. I'm sorry, but to say otherwise in this specific case is to imply that programs created by an EO are permanent, and that they cannot even be changed or ended by Congress. I certainly could argue that is the implication of this judge's ruling.
President Trump is going at a record pace as far as getting judicial appointments to the Federal bench going and getting them confirmed. It is cases like this that make that the most important thing that he can do, perhaps.
Or am I missing something?
Copyright 2018 by Robert Sutton
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