Editor’s Note: Jeffrey Toobin is CNN’s senior legal analyst and author of “The Oath: The Obama White House and the Supreme Court.” Follow him on Twitter @JeffreyToobin. The opinions expressed in this commentary are solely those of the author.
Jeffrey Toobin: Trump's dodge is a decision -- he has authority but doesn't want the heat
By punting to Congress on DACA, he's making a statement on America's values, Toobin says
The debate over DACA comes down to a simple question: What kind of country are we?
DACA stands for Deferred Action for Childhood Arrivals, which is a bureaucratic description of a vast American dilemma – that is, the fate of children who accompanied their parents when they illegally entered the United States.
Under existing law, before DACA, these children were just as subject to deportation as their parents, even though they were blameless in the decision to cross the border and most have known no other home besides the United States. What should be done with these children, who have become known, in an apt turn of political messaging, as Dreamers?
Frustrated by the failure of Congress to address the fate of the Dreamers, the Obama administration in 2012 took unilateral action to protect them, for a while anyway. President Barack Obama created the program so the Dreamers could receive two-year renewable permits allowing them to live and work freely if they passed a background check. About 800,000 people signed up for DACA permits, and it is their fate at issue in the DACA debate.
On Tuesday, the Trump administration, through a statement by Attorney General Jeff Sessions, ended DACA, with an effective date of six months from now, purportedly to give Congress time to address the problem.
Both opponents and supporters of DACA have made dubious legal claims about the program. Many Republicans, including Sessions, have claimed that Obama exceeded his authority as President when he established the DACA program; these critics contended that only Congress, not the President alone, has the authority to protect the Dreamers. (Several right-leaning judges have agreed and put expansion of the program on hold before Obama left office.)
On the other side, several Democrats have argued that DACA is effectively mandatory and have vowed to go to court to make sure that its protections remain in place.
The Constitution gives the president broad powers when it comes to immigration. Since there are roughly 12 million people in the United States without proper papers, the federal government lacks the resources to try to deport them all. Accordingly, the government has every right to establish priorities for enforcement; DACA was simply a statement by Obama that he would put the Dreamers at the back of the line for deportation.
Repeal of DACA is a statement by President Donald Trump that the Dreamers may move up the line of possible deportees. Both presidents had the right to make these decisions.
The question, then, about DACA is not one of law but of politics. In other words, the issue is not whether presidents can protect Dreamers – they can – but whether they should. And this choice is one where the country, through the president, can define its values in a clear and meaningful way
The Dreamers are not, by definition, threats to the safety of their fellow residents of the United States. They are individuals who are trying to make their way in the same way as the American citizens they have lived besides for most of their lives.
The Dreamers are students, soldiers, employees and some are now the parents of American citizens. They made no choice to violate immigration law, and they have not, in the vast majority of cases, imposed burdens on the only home they’ve known.
Through the attorney general, Trump has thrown the Dreamers’ fate in the lap of Congress, pretending that he lacks the authority to protect them. But this uncharacteristic assertion of weakness by Trump is just a political dodge. He has the authority but doesn’t want to take the heat for making a decision one way or the other.
But handing off the decision to Congress, which has shown itself unwilling to address the issue of Dreamers, is a decision itself. It’s a decision to expose the Dreamers to an uncertain, and perhaps disastrous, futures. And that judgment may haunt the nation’s conscience for decades to come.