If Obama Had Authority To Initiate DACA, Trump Has Authority To Rescind It

If Obama Had Authority To Initiate DACA, Trump Has Authority To Rescind It


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The whole idea behind executive orders is that they rely on the authority of the president who signs them—but one president cannot enlarge or diminish the powers and authority of the next president.

The Supreme Court last week chose to consider a challenge to President Trump’s decision to rescind DACA, which stands for Deferred Action on Childhood Arrivals.

So, first off, the very concept of President Barack Obama being able to enact an executive order that President Trump is then barred from undoing is repugnant to the constitutional order. It would, in effect, elevate Obama’s solo order into an act of Congress (because it would require the same—an act of Congress—to reverse).

And mark my words, if a Democratic president is elected next year and tries to undo a Trump executive order, the same people arguing that Trump cannot end DACA will be arguing that President 46 (whomever that may be) can undo Trump’s orders with a stroke of a pen.

Second, all DACA ever granted to the “Dreamers” was a deferral of immigration enforcement. That’s inherently temporary, and cannot possibly vest a “right” to its indefinite continuance. And even more so, it cannot confer any triable “right” for persons not yet in the program to gain the benefit of those deferrals.

This is a truly absurd attempt to not only justify Obama’s end-run around Congress, but to invest it with stronger protections than even the most uncontroversially legitimate executive order would otherwise get.

The fact that it’s dragged on this long is frankly an embarrassment to the rule of law.

DACA could be the best executive order ever signed by any president in the history of the Republic, and it would still be constitutionally wrong to deny Trump the power to rescind it.

Zarrella is an attorney who lives and works in Massachusetts.

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