Unconstitutional acts don’t become constitutional because you like the results. That’s why Congress, not the president, needs to give legal status to illegal immigrants brought here as children.
Earlier this month, the 5th U.S. Circuit Court of Appeals ruled a Texas federal judge correctly found that the Deferred Action on Childhood Arrivals is unconstitutional. Barack Obama unilaterally created DACA in 2012. The program grants certain protections to those who came to the United States illegally as children. Eligible participants can receive work permits and protection from deportation. U.S. District Judge Andrew Hanen has since allowed the program to continue for those already enrolled while the case continues.
The justification for this program is straightforward. A 28-year-old crossing the border illegally has a choice in the matter. An 8-year-old doesn’t. Was he or she supposed to run away from his parents?
These children grew up in America, learning the language and culture. They went to school here and work here. In many cases, they’ve become productive members of society and are a benefit to their communities.
But living in a country with the rule of law means politicians have to follow the rules. Even Mr. Obama acknowledged that repeatedly. In reference to enacting new immigration policies without Congress, he said in 2010, “I am not king. I can’t do these things just by myself.” In 2011, he said that with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” Later that year, he said about bypassing Congress to change immigration law, “That’s not how a democracy works.”
Facing a tough re-election campaign in 2012, he changed his tune and enacted DACA on his own. In 2020, Chief Justice John Roberts stopped Donald Trump from ending the program, saying he didn’t follow the steps laid out by the Administrative Procedures Act. Ironically, neither did Mr. Obama. Chief Justice Roberts’ decision appeared to be a way to save the program without ruling on its constitutionality.
Since then, Justice Amy Coney Barrett has replaced the late Ruth Bader Ginsburg, a liberal justice. It may take a while, but the Supreme Court is likely to rule — correctly — that DACA was unconstitutional as imposed.
But that’s a judgment on how the program was put in place, not on its merits. Giving DACA recipients permanent legal status is compassionate, fully justified and supported by the vast majority of Americans. Congress should act to do precisely that before the court strikes this program down.
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