President Trump: Why can’t I executive-order “unlawful” DACA out of existence?

That’s actually not a bad question, and one of the better topics on Donald Trump’s Twitter feed this morning. However, it’s a question that the Supreme Court has already said it would address in arguments this fall, so why is Trump bringing it up now? Here’s a hint — who came back to work this week in Washington?

The Immigration Law Institute’s Christopher Hajec says, “The Supreme Court has to look st whether DACA is lawful. What they are looking at now is whether Trump’s recision of DACA is lawful. Must consider lawfulness of DACA itself. Looks very odd that President Trump doesn’t…..

— Donald J. Trump (@realDonaldTrump) September 6, 2019

….President Obama never had the legal right to sign DACA, and he indicated so at the time of signing. But In any event, how can he have the right to sign and I don’t have the right to “unsigned.” Totally illegal document which would actually give the President new powers.

— Donald J. Trump (@realDonaldTrump) September 6, 2019

That has been the primary argument over Trump’s attempts to close out the Deferred Action on Childhood Arrivals program, created by Barack Obama through executive order. The EO directed immigration officials and prosecutors to use their discretion not to pursue deportation cases against children brought into the country illegally as long as they stayed in school and didn’t break other laws. A parallel program aimed at protecting the parents, DAPA, got shot down by federal courts because it went further than prosecutorial discretion and allowed parents to get work permits in violation of federal law. EOs cannot override statute, but the president can direct prosecutorial priorities.

The issue with DACA is that it’s not statutory, which — theoretically, anyway — means any succeeding president can impose his/her own prosecutorial discretion in the same manner. Trump tried that by issuing countermanding EOs, which courts have blocked through some legal sophistry. The basic question comes down to this: if Obama could legally do this through an EO, then Trump can legally undo it the same way. If Trump can’t undo it with an EO, then Obama couldn’t legally do it in the first place without congressional action, which then makes DACA illegal anyway. Thus far, courts have instead opted for outcome-based decisions which necessarily impede presidential authority, but only for some presidents.

Read the rest from Ed Morrissey HERE.

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