Op-Ed

Ken Cuccinelli: Settling for the End of DACA

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Six brave state attorneys general have filed a lawsuit correctly arguing that the Obama-era Deferred Action for Childhood Arrivals program that grants work permits and legal status to illegal aliens who came to America as children is unconstitutional.

President Donald Trump should agree and order the Department of Justice to settle the case in order to restore the Constitution.

The lawsuit is nearly identical to a successful lawsuit these same attorneys general filed that ended the Deferred Action for Parental Accountability program. The AGs won their DAPA case in the 5th Circuit and the Supreme Court deadlocked 4-4 (the late Justice Antonin Scalia’s seat was vacant) in June 2016, thereby upholding the 5th Circuit ruling that ended DAPA.

Former President Barack Obama himself noted on numerous occasions that he — as president — did not have the legal authority to create his own immigration law. Yet in 2012, he did just that using only executive authority to create DACA without congressional authorization — exactly what he himself had said he did not have the power to do!

“I am president, I am not king. I can’t do these things just by myself,” Obama said in 2010, according to the Los Angeles Times.

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Trump, meanwhile, announced last September his intention to phase out DACA beginning in March 2018.

However — shockingly — numerous judges have weighed in to attempt to compel the executive branch to continue DACA. This is an astonishing violation of the separation of powers by these judges, who are ordering the executive branch to continue a program commenced using only claimed executive power, thereby blocking a newly elected president from undoing the purely executive action of his predecessor!

The Founding Fathers would be appalled!

This is a case of a small number of judges trying to impose their policy preferences by judicial fiat, quite contrary to the six state attorneys general who have filed a lawsuit in an effort to stop the executive branch from making up its own laws.

Do you support ending DACA in its entirety?

Particularly given the outrageous behavior of some judges to unilaterally keep DACA going, Trump should order the DOJ to settle the AGs’ case and end DACA now.

What would happen if the Trump administration attempted to settle this case?

Two things would happen:

First, other parties that want to keep DACA would attempt to intervene in those cases to argue against settling. It is likely the courts would allow some interested party to intervene to at least make the argument against settlement.

Second, the court would decide directly whether the constitution was being violated, and thus whether the settlement was appropriate. At that stage, it will be critically helpful to have the U.S. government (read: Trump administration) standing with the state attorneys general to end DACA, as the courts give significant deference to the position of the federal government in such cases.

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Assuming the settlement was approved, it would undoubtedly be appealed. But the good news for constitutionalists is that the earlier DAPA ruling has paved the way to end DACA, and a settlement should hold up all the way through the Supreme Court.

Settling this case would represent a big step toward Trump fulfilling his own campaign promises, but this is a big step.

The big question now is whether the president will act to end DACA himself. If Trump wants to end DACA, he now has a way to do it.

Ken Cuccinelli was the first state attorney general to sue against Obamacare, and the first to have it held unconstitutional in district court. He now leads the Senate Conservatives Fund in efforts to elect anti-establishment conservatives to the U.S. Senate. Click here to find the Senate Conservatives Fund on Facebook.

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