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Announcing the Trump administration’s plans to end the Deferred Action for Childhood Arrivals program and create a ticking time bomb for 800,000 immigrants, Attorney General Jeff Sessions sought to frame the question as a simple matter of constitutional law rather than a policy judgment on the merits of taking 800,000 people out of the legal workforce and subjecting them to possible deportation.
“It means we are enforcing our laws as Congress passed them,” Sessions explained. Nothing more and nothing less.
This certainly aligns with the Trump administration’s own internal decision-making process on DACA. Trump seemed inclined to simply let DACA lie where it was, but Texas’s attorney general threatened to sue under the untested legal theory that DACA represents a violation of the president’s constitutional obligation to “take care” that the laws of the country be enforced. And while Trump was happy to punt on actually fulfilling his campaign promise to end DACA, he wasn’t willing to fight a lawsuit.
But the logic here is extremely dubious.
No court has actually ruled in Texas’s favor on the DACA issue. And even though Texas succeeded in getting a temporary injunction on a similar lawsuit about a broader program the Obama administration tried to create, that lawsuit hasn’t been decided on the merits either. Any president has the option of fighting lawsuits and arguing in favor of executive discretion, even if they may end up losing the case in court. Past presidents have repeatedly offered various forms of unilateral protection from deportation in anticipation of congressional action, and nothing was stopping Trump from doing the same rather than rescinding protection to try to spur congressional action.
Last but by no means least, in the various lawsuits surrounding the travel ban from earlier this year, the Trump administration always made the exact opposite argument: that the executive branch has extremely broad and essentially unreviewable discretion over immigration policy. Now Sessions is arguing he has no discretion at all.
The reality is that ICE is already deporting as many people as the backlog in immigration courts will allow — about 400,00 people per year. Exercising some discretion to ensure that 800,000 particularly sympathetic cases out of a total population of about 11 million won’t be targeted is a perfectly reasonable approach, and Trump absolutely had the option of standing up in court for his right to take that approach. He simply chose not to.
