Executive DACA Had to End, but Congress Must Now Legislate It

DACA is a good policy but bad law. Those who were brought to the United States illegally as children and have since led productive lives deserve to stay and earn citizenship. Alas, our immigration laws prevent this and the executive branch didn’t acquire extra powers to remedy this when Congress shamefully failed to pass the DREAM Act on multiple occasions.

President Trump was justified in stopping a program that lacked constitutional authority, but he is now equally obligated to press Congress to fix the laws that created the resulting mess. As my colleagues Alex Nowrasteh and David Bier have pointed out, the moral and economic case for continuing the legal status of the so-called DREAMers and legalizing other unlawful immigrants is overwhelming. Congress has six months in which to legislate such a solution, whether as a stand-alone bill or as part of a larger immigration compromise. If it fails, Congress will have earned opprobrium for the 800,000 lives that are now in turmoil.

This episode illustrates how President Obama’s penchant for government by executive action leads to continued reversals in his key programs. Any legal challenges to DACA rescission have no leg to stand on precisely because he and his lawyers argued that the program, like its DAPA successor, created no new legal rights or statuses. There was no administrative process to create DACA—there could not have been because of the absence of legal foundation—and so no process beyond the new Trump administration guidance is needed to end it.

The ball is now properly in Congress’s court.