DACA Can Be Both Good Policy and Unconstitutional

by | Sep 8, 2017

This may seem like a contradiction, but it is not. Indeed, it is probably a reasonably fair assessment of the Deferred Action for Childhood Arrivals (DACA) executive order that President Trump has decided to rescind.

On the policy side, the issue is relatively straightforward. For individuals who came to the US as minors (under 16) and met certain criteria, DACA shielded them from deportation. This is a good idea first and foremost because illegal immigration is ultimately a victimless crime. As DACA reduced the number and scope of people punished for such infractions–and the amount of taxpayer money expended for that purpose–it was a positive development.

The fact that it targeted a group of people (minors) that may have had little role in deciding to come to the US and violate the law in the first place is also helpful. This feature is useful politically because it may appeal to a broader coalition for support. It also fits with the generally held view that younger offenders of laws should be treated differently, and less severely, than adults.

But the constitutionality question does not hinge on whether DACA happens to be a good idea or not. The Constitution simply tells us what the federal government is authorized to do, and if something is authorized, which branch of the government is responsible for doing it. In the case of immigration, the federal government is allowed to make laws about it, and the Legislative Branch, not the Executive, is in charge of doing so.

Notably, this is not a fringe or uniquely libertarian position on the constitutional question. Writing about a similar executive action on immigration from President Obama issued later, The New York Times documented that Obama himself routinely stated that the Constitution tied his hands on changing immigration laws without Congress–at least until the point he decided to change them anyway.

Of course, this doesn’t mean we must take the Trump Administration at face value when they claim to rescind the program due to constitutional concerns. (Trump has not been a consistent adherent to constitutional limits in other matters, after all.) But whether those concerns are sincere or not, they are probably warranted.

It is possible to simultaneously be skeptical of the Trump Administration’s motives, supportive of DACA as a policy, and dubious about its constitutionality. Some of these positions may seem mutually exclusive. They are not.

Fortunately, for those of us that do support the underlying policy of DACA, it is about to enjoy a surge in popularity thanks to the Trump Effect–whereby almost any idea can gain widespread support and become urgently necessary based on the simple fact of the president’s opposition.

Indeed, on DACA, the Trump Effect is already in full swing.

About Eric Schuler

Eric Schuler is a contributor to The Libertarian Institute, with a focus on economics and US foreign policy. Follow his work here and on Twitter.

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