IMMIGRATION

Texas Attorney General Paxton: We must phase out DACA and return to the rule of law

Ken Paxton

As a faithful and longtime reader of the Wall Street Journal, I have always respected the opinions of its editorial board. But I have to take exception with the Journal’s “A Bad GOP Dream,” which gets it all wrong on why I led a 10-state coalition asking President Trump to rescind the Obama administration’s 2012 Deferred Action for Childhood Arrivals (DACA) program.

At the outset, let me set the record straight: Our request does not ask the federal government to deport any alien currently covered by DACA. Nor does it ask the Trump administration to rescind DACA permits that have already been issued. Rather, the request is to phase out these unlawful actions by not renewing or issuing any new DACA permits.

It’s a mystery to me how the Journal can accuse our coalition of political grandstanding when the editorial board itself acknowledges that “DACA has similar constitutional deficiencies” as the Obama-era memo that created the Deferred Action for Parents of Americans (DAPA) program in 2014. Indeed, in both cases the Executive Branch “usurped Congress’s law-writing power,” to quote from the editorial. The rule of law shouldn’t be dismissed because the Journal agrees with policies contained in DACA. That’s the very same rationale that the Obama administration used when unlawfully creating DAPA and DACA.

Moreover, DACA triggers numerous consequences. During Texas’s successful lawsuit against DAPA, we learned that DACA recipients have even been given Green Cards, and thus a pathway to citizenship—despite the Obama administration’s initial pledge that DACA does not confer such a legal path to citizenship.

Apart from a pathway to citizenship, DACA allows aliens to leave and re-enter the country, removes eligibility bars from Social Security, Medicare, and the Earned Income Tax Credit, and confers eligibility for state benefits such as driver’s licenses and unemployment insurance. As of August 2016, more than 220,000 unlawfully present aliens in Texas applied for a permit or a renewal of one under DACA, and nearly 200,000 of those were approved.

While serving as President, Barack Obama repeatedly exhorted Congress to pass the DREAM Act, which would generally allow unlawfully present aliens who entered the country before age 16 to apply for lawful status. But Congress repeatedly refused, so President Obama bypassed Congress and unilaterally hatched DACA.

As the Journal notes, DACA is similar to DAPA, which also tried to bypass Congress and unilaterally confer lawful presence and work authorization on millions of unlawfully present aliens.

The Department of Homeland Security finally revoked the 2014 DAPA program last month, but DHS also stated that the 2012 DACA program and some permits issued under the 2014 program would remain in effect.

My letter to the Trump administration was written in response to that memo and asks for a complete phase out of DACA.

Phasing out DACA is about the rule of law, not the wisdom of any particular immigration policy.

Our nation was founded on the revolutionary idea we now call the separation of powers: Constitutional governmental authority should be separated into three distinct branches—the legislative to make the laws, the executive to execute those laws, and the judicial to interpret them.

The separation of these powers protects the nation from becoming the monarchy from which our forefathers sacrificed their lives to claim independence. Consolidation of power is tyranny, the very opposite concept of the foundational principles set forth by our Constitution.

President Obama knew this. Early in his second term, he explained of immigration reform:

“I’m not a king . . . If this was an issue that I could do unilaterally I would have done it a long time ago.” But he explained that “the way our system works is Congress has to pass legislation. I then get an opportunity to sign it and implement it.”

It’s a shame he ignored his own advice.

We agree with the Journal that a way to address the constitutional deficiencies of DACA is through Congress. But our coalition took action because the program remains in place through sheer unilateral executive fiat.

We’ve given the Trump administration until September 5 to agree to phase out DACA. Otherwise, our lawsuit challenging unlawful deferred-action programs currently pending in district court will be amended to challenge the renewal or issuance of any new DACA permits in the future.

Once again, our request does not call on the executive branch to alter immigration enforcement priorities or deport any unlawfully present aliens. 

Last year, when a Texas-led lawsuit of 26 states culminated in the U.S. Supreme Court blocking President Obama’s unlawful deferred-action policies, including DAPA, then-candidate Trump was completely correct when he said that the Court “blocked one of the most unconstitutional actions ever undertaken by a President.”

DACA is exactly like DAPA, and needs to be phased out to preserve the rule of law. 

Ken Paxton is Attorney General of Texas.