Nate Jackson / June 24, 2020

DACA: All Three Branches Eschew Constitutional Roles

Congress, the previous president, and the judiciary all defy or exceed their powers.

On September 17, 1787, our Founding Fathers completed a new Constitution and it was ratified by all 13 states over the ensuing months. On March 4, 1789, the newly established government began operating as intended in three branches: legislative (Article I), executive (Article II), and judicial (Article III). We go through this brief history because today’s federal government has so overgrown and trampled the limits placed upon each branch as to at times be nearly unrecognizable. The recent tussle over DACA (Deferred Action for Childhood Arrivals) highlights in one issue the utter failure of all three branches.

Congress alone has the power to make laws. For years, debate brewed over how to handle children who had arrived illegally in the U.S. with their parents — the so-called “dreamers.” These kids, we’re repeatedly told, had grown up here and considered it the only home they’d ever known and thus should be given full citizenship. We won’t rehash the debate on the merits in this space (there’s plenty of that here), but the bottom line is that hammering out legislative policy is a job that belongs to Congress alone.

Of course, most of our elected representatives are so busy worrying about being “elected” that they neglect the “representative” part of their jobs. Why take a tough vote and solve a problem when it can perpetually be used for political gain?

The president alone has the power to execute the laws; he cannot make those laws. Barack Obama, the former “constitutional scholar” turned president, would frequently make this point in the years of debate over DACA. He couldn’t change the dreamers’ status without Congress, he’d rightly say, because he didn’t have the power to do so.

Until he changed his mind and did it anyway after the 2014 midterm wipeout his party suffered.

This presidential power grab suited not just Obama but Democrats in Congress. Frankly, Republicans didn’t really mind because it gave them a foil. It wasn’t until Donald Trump won the White House largely based on his immigration promises that Obama’s DACA debacle was eventually undone.

Until it wasn’t because the Supreme Court said so.

The judiciary was established merely to adjudicate the law, though it quickly morphed into the arbiter of what was or was not constitutional. The courts may not make law. Yet in countless instances, the judges and justices have written law from the bench. Abortion, marriage, healthcare — the examples are too many to recount.

In the case of DACA, as we noted when the decision was handed down last week, the Court wasn’t so much concerned with whether Obama had acted within his authority (he clearly hadn’t) but whether Trump had gone through the right procedure to undo his predecessor’s patently unconstitutional deed. Process is important, but instead of arbitrating unconstitutional actions, the Court ended up reaching the convoluted decision that Trump must enforce Obama’s unlawful edict because of procedural concerns.

In short, this isn’t a story about immigration law or dreamers or political disagreements. It’s ultimately a story of the total disengagement of all three branches of the federal government from proper constitutional constraints. Congress either won’t make laws (ceding power to the executive) or it passes bad ones. Presidents disregard limits on their authority and do what Congress won’t. And judicial despots trample them both. Would the Founders even recognize our modern government?

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