Like so many other politicians, DACA simply shows the President’s willingness to turn to the Constitution when it suits his political agenda.

A recent conservative blog post triumphantly trumpeted, “DACA Proves Trump a Constitutionalist.” In fact, the president’s strategy in addressing the immigration program proves no such thing.

President Obama created the Deferred Action for Childhood Arrivals (DACA) by executive order in June 2012. It allowed immigrants brought to the country illegally as minors to apply for a renewable two-year period of deferred action from deportation and made them eligible to apply for a work permit. The policy was meant to serve as a stop-gap to allow these immigrants to stay in the U.S. until Congress passed legislation to create a pathway to citizenship.

Trump signed an executive order phasing out DACA in early September. In practice, his EO rescinded Obama’s EO.

It was clear from the beginning Trump was trying to force Congress to act on immigration reform. Before the official announcement he tweeted, “Congress, get ready to do your job – DACA.” White House press secretary Sarah Huckabee Sanders said the president wanted to make  DACA a permanent part of “comprehensive” immigration legislation that would end illegal immigration, prevent visa overstays and create a “merit based” system of immigration.

Just weeks later, news leaked that Trump had reached a deal with Democrats in Congress on an immigration plan that would give those who met DACA criteria permanent residence in exchange for strong border security.

From its first announcement, the administration emphasized constitutional problems with DACA. Attorney General Jeff Sessions called it “unilateral executive amnesty,” and said Obama “deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the executive branch.”

Sessions was correct in this assessment. The president does not have the authority to unilaterally dictate immigration policy, and he certainly doesn’t have any constitutional power to simply override Congress with the stroke of a pen. DACA was unconstitutional from the get-go.

The blogger pretty accurately broke down up the issues surrounding DACA in his Punching Bag Post article. He sums it up this way.

“Trump did not end DACA because he did not want to protect the status of those involved, but because he wanted to bring about a permanent legal and constitutional solution. So, why did he end the program rather than just seek legislation? Trump understood that Congress would not act until DACA was terminated. It is the nature of the national legislature to act only at the last minute.”

But can we draw from this that Trump is “a constitutionalist,” as the Punching Bag Post headline proclaims?


We can conclude that Trump has some pretty shrewd political instincts. It appears he was able to maneuver Democrats into making some kind of deal on immigration. If Congress actually passes a bill, the DACA saga will go down as a big political victory for Trump. We can even conclude that the Trump administration understands limits to executive power exist out there somewhere. But none of this makes Trump a “constitutionalist” – no more than Obama’s condemnation of the Patriot Act when he was a senator made him a constittutionalist.

In truth, the Constitution was little more than a chess piece in the president’s political maneuvering. Granted, it was properly played. But that shouldn’t lead you to conclude Trump has some great respect for the document and its limits on federal authority. The administration has simply ignored the constitutional on a number of occasions, including when it launched missiles at a sovereign nation (Syria) with no declaration of war, in its doubling down on asset forfeiture, in its continuation of the drug war, in Trump’s call for “infrastructure” spending and in the push for another unconstitutional federal healthcare scheme to replace the current unconstitutional healthcare scheme.

Federal politicians of every stripe trot out the Constitution when it advances their agenda. They just as quickly hide it behind their backs when they realize it might interfere with their plans. If a constitutional argument supports their policy, they will argue it with the fervor of a true disciple. But when it undermines their political position, the verbal gymnastics and rhetorical justifications begin.

It’s fine to praise the president when he gets something constitutionally correct. But don’t try to paint the current administration – or any other modern presidency for that matter – as some kind of paragon of constitutionality. It just isn’t so.

Image via Michael Vadon, Flickr

Mike Maharrey

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